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"mines, MINERALS, ETC." 

San Francisco: 


umnf or TK 

^"f l^HC^ 

Copyright 1879, 



The object of this book is to take a general survey of the 
doctrine known to the law as that of damnum absque injuria, 
\t is proper to have it distinctly understood that it is not an 
attempt at a treatise or a commentary on the law of torts. 
The details of the distinction between a case of damnum 
absque injuria and a case of tort will be found in the first 
and introductory chapter, and the law of torts has been 
treated of in various works now before the public. But I 
have considered the subject in its relation to the law of torts, 
and for reasons to be presently given, in that relation only. 
I have therefore found it convenient to use many of the head- 
ings or subdivisions of that branch of the law under which to 
group the result of my labors upon the matter in hand. But 
a tort being a wrong independent of contract, a ^Megal 
wrong" — that is to say, a wrong in contemplation of law, 
and therefore susceptible of a remedy — is precisely what a 
case of damnum absque injuria is not, the latter being neither 
a " legal wrong" nor susceptible of any remedy. So that my 
object is to deal with, and to collect sufficiently to illustrate 
the subject, those cases of loss and damage for which the 
law provides no remedy ; cases where the theory of the law is 
that no ^' wrong " has been committed as the law understands 
the term — cases of loss, damage, or injury, "without wrong," 
absque injuria. As a correlative subject, some of those cases 
will be considered where there may be a technical wrong 
committed, but through some defect in the plaintifiP's right, 

! . 


title, or interest, or through the absence of these things, the 
law presumes that he has no right which can be damaged at 
all. These are properly cases of injuriu sine damnOy wrong 
without actual damage, as contradistinguished from those 
where the plaintifiTs right to the thing injured is complete; 
yet the injury is irremediable at law, because, however great 
the loss may be, the law declares that no wrong has been 
committed. In neither case is there any remedy. 

It is hoped that such an inquiry as this may prevent much 
useless litigation, expensive to the client and perhaps vexatious 
and unremunerative to the attorney, since such cases more than 
any others are taken by the attorney upon contingent compen- 
sation, where this is allowed. While a party may consider 
himself aggrieved at not being provided with a remedy by 
the laws of his country, it may be of considerable advantage to 
him to know the fact before entering into litigation, where in 
the ordinary course of events defeat is inevitable, assuming that 
the case is properly presented on the adverse side, and that the 
court is informed of the law. 

It is proposed to treat the subject in its relation to the law of 
torts. The author considers this its legitimate sphere. In a 
broad sense, when a promissory note becomes barred by the 
Statute of Limitations, or when a creditor is compelled by a 
bankrupt or insolvent law to take a small percentage instead of 
the whole claim, or when a verbal agreement falls within the 
purview of the Statute of Frauds, a person suffers a loss and it 
is a loss without a remedy, but it is not what lawyers under- 
stand by the term damnum absque injuria. I have, therefore, 
rejected discussions of the law of contracts and mere breach 
of contract, and have considered the subject solely in its re- 
lation to the law of torts, to which grand division of the law 
I consider that it properly belongs. 

It has been sometimes said that a tort may be dependent upon 
or independent of contract. I prefer the definition already 


given, that a tort is a wrong independent of contract. But in 
reference to the other proposition it is said that if a contract 
imposes a legal duty the neglect of that duty is a tort founded 
on contract, so that an action ex contractu for tlie breach of the 
contract, or an action ex delicto for the breach of the duty, may 
be brought at the option of the plaintiff. He may waive the 
tort and sue upon the contract. Where there is a violation of a 
legal right existing independent of any contract, such as an in- 
vasion of a right of property, or the right of personal security, 
or an injury to character, it is not founded on contract, and an 
action ex delicto alone is proper. Whether a breach of contract, 
express or implied, can ever properly be called a tort, is a prop- 
osition I shall not stop to discuss, inasmuch as either an action 
ex delicto or an action ex contractu will usually lie. The plaint- 
iff, where there is a breach of contract, can generally have at 
least nominal damages. As we are treating of cases where no 
damages can be recovered, a discussion of ^^ torts dependent upon 
contracts " (if there be such things) is manifestly beyond the 
scope of this book. 

The general plan of the work is to consider the subject 
of damnum absque injuria as follows : It is true, as a general 
proposition, that a person has a right to be secure in his life, his 
person, his liberty, health, reputation, and property, real and 
personal ; and further, that for a violation of this security, for 
an injury to any of these things, he or his representatives can 
recover some sort of damages. We shall consider in their or- 
der those cases of injury to these things where no damages 
can be recovered — where the law imputes no wrong, and there- 
fore gives no redress. The subject of injuries to real and per- 
sonal property includes chapters on injuries to the holders 
and owners of stocks and shares in incorporated companies, 
coming under the general head of conversion of personal prop- 
erty, and the subject of injuries to real property includes a 
chapter on injuries from mining operations, and one on inter- 


ference with subterranean and surface streams and percolat- 
ing waters. This is followed by a consideration of subjects, 
which it has been found convenient to consider separately, 
viz : Injuries arising from the nonfeasance, misfeasance, and 
malfeasance of public officers, the subject of injuries arising 
from negligence, and certain cases of misrepresentation and 

The subject may at first blush appear to be one of exceptions 
to general rules. I have endeavored, by statement of principle, 
and such illustration as I thought would be acceptable, to sys- 
tematize the law upon the matter, and from its scattered con- 
dition it has not been a very easy task. I hope to have taken 
at least one step towards demonstrating that it is not a mere 
abnormal growth, nor a bundle of exceptions, and that it may 
perhaps be entitled to rank as a distinct branch of the law, 
although a minor branch, presenting no greater proportion of 
isolated features or discordant elements than many others. 
However this may be, the result of investigating the law that 
has growd around a Latin phrase is now before the reader. 

San Francisco, May, 1879. 




§ 1. Preliminary. 
§ 2. Deflnition of a tort. 
§ 3. Classifications of torts. 

§ 4. Definition of the term "damnum iibsque ir\furid" 
§ 6. "iTyiiria 9ine damno" 
§ 6. The right to damages. 
§ 7. The remedy for wrongs. 

§ S. General illustrations of the doctrine of damnum absque ir^'t/ria— damages 
from lawful acts. 

§ 9. Use of one's own property. 

§ 10. Contributory negligence. 

§ 11. Trifling injuries. 

§ 12. Interference with trade. 

§ 13. Injuries committed through necessity. 

§ 14. Bnles of public policy — eminent domain. 

§ 15. Assumption of family names. 

§ 16. Injuries arising from felonies. 

§ 17. Injuries by grantees of franchises. 

§ 18. Consent to or acquiescence in injuries. 

§ 19. Non-exercise of power by municipal corporations. 

§ 20. Publication of uncalled-for letters. 

§ 21. Infringement of patents. 

§ 22. Escape of dangerous elements or substances. 



$ 23. General plan. 
$ 24. Personal injuries. 

§ 25. Injuries by infants and non-compotes. 

§ 26. Injuries resulting in death. 

$ 27. Assault. 

§ 28. Assaults in self-defense, etc. 


§ 29. Defense of relatives, friends, etc. 

§ 90. Moderate correction by parents, etc. 

§ 31. Injuries to licensieea. 

§ 32. Injuries to workmen. 

§ 33. Injuries to trespassers. 

§ 34. Injuries inflicted by masters of sliips upon their crew. 

§ 35. Injuries from animals. 

§ 36. Seduction. 

§ 37. Criminal conversation. 

§ 38. Connivance of the plaiutifT. 

§ 39. Infidelity of the husband— Neglect of wife. 



§ 40. False imprisonment. 

§ 41. What does not constitute imprisonment. 

§ 42. Lawful arrests. 

§ 43. Justifiable detentions. 

§ 44. Imprisonment by commanders of vessels. 



§ 45. Personal discomfoit. 

§ 46. Mental distress. 

§ 47. Obstruction of lights. 

§ 48. Nuisances authorized by Act of the Legislature. 

§ 49. Exercise of statutory powera. 

§ 50. Trustees and Commissioners of Public Works. 




§ 51. Defamation. 

§ 52. Slander. 

§ 53. W^ords held not actionable. • 

§ 64. Actionable words qualified by other words. 

§ 55. Charge of false swearing. * 

§ 56. Slander and libel— Publication. 

§ 57. Insufficient publication. 


$ 56. Words affecting trade, business, or occupation. 

$ 60. The truth of the charge as a justification. 

§ GO. Privileged communications, utterances, and publications. 

$ 61. Extent of the privilege. 

§ 62. Reports of trials. 

§ 63. Privileged petitions. 

§ 6i. Communications In reference to proposed marriages. 

$ 65. Privilege of counsel in argument. 

§ 66. Under control of the court. 

§ 67. Responsibility of counsel ih argument. 

§ 68. Publication of argument. 

§ 69. Malicious prosecution. 

§ 70. Malicious prosecution of civil actions. 

§ 71. Defendant's proof. 



§ 72. Injuries to property. 

§ 73. Injuries to personal property arising from necessity. 

§ 74. Conversion of goods, etc. 

§ 79. Limited interference with chattels. 

§ 76. Chattels found. 

§ 77. Chattels received as security. 

$ 78. Injuries to animals. 

§ 79. Hitching horses. 




$ 80. Injuries suffered by purchasers of stock. 

$ 81. Technical breaches of trust. 

§ 82. Injuries suffered by equitable owners of stock— conversion by pledgee. 

§ 83. Sale of mining stock — fraudulent representation. 

§ 84. Stock stolen. 



$ 85. Trespasses on real property. 

§ 86. Landlord's right to enter his premises. 

$87. Justifiable entries. 

§ 88. Self-liberation. 





§ 90. Bight of surface sappoTt--Cominon-law presumptions. 

$ 91. Express grant of right to surface support. 

§ 92. Support from adjacent soil. 

§ 93. Lateral support to ditch property. 

§ 94. Flooding. 

§ 95. Upper and lower level. 

§ 96. Mining operations regarded as nuisances. 

§ 97. Fraudulent working. 

} 96. Prior possession of lands adjoining ndnes. 

§ 99. Right of oldest locator. 




§ 100. Diversion of subterranean streams, hidden springs, and percolating 
waters — ^Injuries from mining operations to adjoining lands. 

§ 101. Subterranean waters — Percolations diverted by well-digging. 

§ 102. Injuries to wells, springs, etc., by mining operations in adjoining soil. 

§ 103. Rights of owners of land in subterranean streams and percolations— 
Water belonging to the soil. 

§ 101. Reasonable use of surface streams. 

§ 105. Pollution by sewage, etc. 

§ 106. Injuries to artificial water-courses. 

§ 107. Artificial water-courses— Two classes — Distinctions. 

§ 106. Increasing the flow. 



§ 109. Judicial officers, liability of. 

§ 110. Responsibility of judicial officers for striking attorney's name from the 

§ 111. Ministerial officers. 
§ 112. Acts of sheriffs. 
§ 113. Public officers. 
§ 114. Naval and military officers. 




§ 115. Injuries from negligence. 

§ 116. Remote and proximate damages. 

§ 117. Remote consequences. 

§ 118. Remote consequences — Injuries from fire. 

§ 119. Injuries caused by railway locomotives. 

§ 120. Contributory negligence. 

§ 121. Plaintiffs duty to prevent injury. 

§ 122. Contributory negligence on part of servants. 

§ 123. Contributory negligence — Injuries to children. 

§ 124. N^ligence of master— Injuries to servants. 

§ 126. Injuries to servant — Exemption of master. 

$ 126. Injuries to servants from their fellow-servants. 

§ 127. Negligence of servants. 

$ 128. Negligent management of chattels-— Inevitable accident. 

§ 129. Successive negligence of two or more. 

§ 130. Conteinpolraneous negligence. 

$ 131. Intervening negligence. 

§ 132. Mutual negligence. 

S 133. Negligence of medical men. 



§ 134. Deceit, fraud, and misrepresentation. 

§ 135. What must be shown, or the action fail. 

§ 136. The representation. 

§ 137. Knowledge of falsity. 

§ 138. Ignorance and belief of the plaintiff. 

§ 139. Equal means of knowledge. 

§ 140. The intention that the representation should be acted upon. 

§ 141. Acting upon the representation. ^ 

§ 142. Waiver of fraud. 

§ 143. Expressions of opinion and belief. 

§ 144. Negligence of innocent parties. 

^5:72^x^7^ ^tx!^.e:2.d>^^ 






§ 1. Preliminary. 
§ 2. Definition of a tort. 
§ 3. Classifications of torts. 

§ 4. Definition of the term " damnum absque ir\furid" 
§ 5. "Ir^uria nne damno" 
§ 6. The right to damages. 
§ 7. The remedy for wrongs. 

§ H. General illustrations of the doctrine of damnum absque {Y^fttrfa— damages 
from lawful acts. 

$ 0. Use of one's own property. 

§ 10. Contributory n^ligence. 

§ 11. Trifling injuries. 

§ 12. Interference with trade. 

$ 13. Injuries committed through necessity. 

§ 14. Bnles of public policy — eminent domain. 

§ 15. Assumption of family names. 

S 16. Injuries arising from felonies. 

§ 17. Injuries by grantees of franchises. 

§ 18. Consent to or acquiescence in injuries. 

§ 19. Kon-exercise of power by municipal corporations. 

§ 20. Publication of uncalled-for letters. 

§ 21. Infringement of patents. 

$ 22. . Escape of dangerous elements or substances. 

§ 3. ProUminary. — It is proposed in this chapter to define 
the subject under consideration, and to follow with some general 
illustrations which, it is hoped, will further elucidate the matter, 
and explain the general nature of the doctrine known as damnum 
cibsque injuria. In the succeeding chapters the general divie- 
ions of the law of torts will be examined in their order, and 

D. A. I.— 1 


those cases and conditions referred to which constitute an in- 
jury one without remedy, and, theoretically at least, to use the 
language of the books, " without legal wrong." In this chapter 
the illustrations will be purposely diverse and miscellaneous, the 
better to convey some general idea of the meaning, extent, and 
scope of the doctrine. In the succeeding chapters it will be 
attempted to consider in their order, and with an effort at classi- 
fication, those injuries to the persons, the liberty, the health, the 
security, the reputation, and the personal and real property of 
members of civilized society, and those injuries to the relative 
rights which fall under the heads of master and servant, parent 
and child, husband and wife, and guardian and ward, and which 
are yet without any legal remedy, however great the loss, the 
injury, or the suffering. A consideration of those injuries for 
which the law affords some remedy would form the groundwojrk 
of a treatise on torts, and, for reasons to be stated, would be for- 
eign to the present purpose. We will now attempt to point out 
the distinction between a tort and such an injury as is damnuvn 
absque injuria^ and therefore falls within the scope of this book.^ 

§ 2. Dafinitioii of a tort. — A tort is a civil wrong for 
Vhich compensation in damages is recoverable, in contradistino 
tion to a crime or misdemeanor, which is punished by the crim* 
inal law in the interest of society at large. Every invasion of 
a legal right, such as the right of property, or the rights inci« 
dent to the possession of property or the right of personal 
security, constitutes a tort ; and so may an injury to the person, 
character, or reputation of another. To constitute a tort, two 
things must concur — actual or legal damage to the plaintiff, and 
a wrongful act committed by the defendant.^ £!x damno sine 
injuria non oritur actioy is an ancient maxim of the common 

^ It was the boast of the common law that tnere was no wrong without a rem* 
edy, and no right without a shield. It will be the province of tliis book to en* 
deavor to show and to enumerate the injuries for which the law affords no rem- 
edy whatever. Still the boast may not be an idle one if we reflect that such 
injuries are not (as will be seen) wrongs at all in contemplation of law. TUey 
aro injuries without wrong, and therefore the maxim ubi jus^ ibl remedium, may 
stiU maintain its place, because cases of damnum absque injuria are cases where 
the law declares that there is no right of action at all, because no wrong has 
been inflicted as the law understands the term. (Johnstone v. Sutton, I T. B 

3 Rex V. Commissioners, 8 Bam. & C. 362. 


law. ^^ There must,^' says Hobart, ^^bc a damage, either al- 
ready fallen upon the party or inevitable — there must also be a 
thing done amiss." ^ One person cannot, either, maintain an ac- 
tion against another for a mere illegal or wrongful act, unless he 
has thereby sustained an injury.^ It is injuria sine damno— 
wrong without damage to the plaintiff. By injuria is meant a 
tortious act, whether willful and malicious or accidental.^ A 
man, on the other hand, may sustain grievous damage at the 
hands of another, and yet, if it be the result of inevitable acci- 
dent, or a lawful act done in a lawful manner without any care- 
lessness or negligence, there is no injury in^ontemplation of law, 
and no tort giving rise to an action for damages.^ An act of 
force, for example, done in necessary self-defense, causing in- 
jury to an innocent bystander, is damnum sine or absque injuries 
for no man does wrong or contracts guilt in defending him* 
self against an aggressor.^ If a lighted firework is thrown into a 
coach full of company, and is thrown out again in necessary self^ 
defense, and falls against and bums a bystander, or explodes in 
his face and blinds him, the person throwing out the firework 
cannot be held liable for the damage.^ If a land-owner whose 
lands are exposed to inroads of the sea, or to inundations from 
adjacent creeks or rivers, erects sea-walls or dams, for the pro- 
tection of his land, and by so doing causes the tide, the current, 
or the waves to flow against the land of his neighbor, and wash 

1 Waterer o. Freeman, Hob. 266. 

> Nichols V. Valentine, 36 Me. 922. 

But it has been said that where a person's legal right is infringed, although 
He suffers no substantial damage, yet he has his right of action. Ir^vria sine 
damno will entitle a person to maintain an action, which means that when a 
person has suffered what in the eyes of the law is looked upon as a legal injury, 
he must have a corresponding right of action, even though he has suffered no 
barm. 8o, in the old case of Ashby r. White, lid. Raym. ()38, which was an 
action against a returning officer, for maliciously refusing to receive the plaint- 
iff's vote on an election of burgesses to serve in parliament, it was held that 
the defendant having so maliciously refused to receive the vote, although the 
members for whom he wished to vote were actually elected, and therefore ho 
suffered no damage, yet he hud a good riglit of action, for he had a legal right 
to vote, and that right was infringed. Such, however, is not generally received 
as the modem doctrine. (Lambard v. Pike, 33 Me. 151. See, also, post^ § 5.) 

< Winsmere v. Greenbank, Willes, 577. 

4 Bizzell V. Booker, IG Ark. 308; Harvey o. Dnnlop, Hill & Denio, 193; Fahn 
9. Reichart, 8 Wis. 255. 

* Morris v. Flatt, 32 Conn. 75; 3 WUs. 412. 

« Scott V. Shepherd, 2 W. Black. S82. 


it away, or cover it with water, the land-owner 80 causing an 
injury to his neighbor is not responsible in damages to the lat- 
ter, as he has done no wrong, having acted in self-defense, and 
having a right to protect his land and his crops from inunda- 
tion.^ But if he runs out a wharf or embankment, for the 
purpose of acquiring more land, or increasing its value, the case 
is different.^ If a man sells a house commanding a fine sea 
view, or a fine prospect, and then builds on his own adjoining 
land so as to shut out the sea view, or the prospect^ a great 
injury is done, but there is no redress.^ Obstructing the free 
passage of light and air is, however, a different matter. At 
common law, the simple sale of cattle affected with disease 
seemed not to be unlawful, so that, if a person bought such 
cattle, and mixed them with his herd or stock, and the disease 
spread, he appeared to be without remedy, on the principle of 
caveat emptor.^ But the consequences are or may be so serious 
that the doctrine has not been universally commended.^ The 
matter is frequently regulated by statute. Where instructions 
for an action were given, and through mistake of the attorney 
the wrong person was sued, and the latter failed to appear and 
plead, and judgment went against him by default, and his 
goods were seized on execution, this was considered damnum 
absque injuria. If he defends, and incurs costs which he can^ 
not recover, he seems to be in no better position.^ These re- 
marks and illustrations will show that a tort implies damage 
coupled with a wrongful act ; damnum absque injuria is dam- 
age without a wrongful *act, as the law understands the term. 

§ 3. dassiflcation of torts. — The law of torts, in its civil 
aspect, has been said to treat of the breach of duties which govern 
the relations of individuals to each other as mere members of the 
State, or as occupying some special situation towards each other 
not produced by agreement inter sese^ or as occupying some 

1 Bex V. Pagham, 8 Darn. & C. 360. But see, corUra, Gerrisli v. Clough, 48 
N. H.9. 

^ Addison on Torts, chap. 1; G Taunt. 44. 

s Alfred's Case, 9 Co. 586; Knowles v. Richardson, 5 Mod. 55; Harwood v. 
Tompkins, 4 Zab. 425. 

4 Hill V. Balls, 2 Hurl. & K. 302. See Fisher v. Clark, 41 Barb. 329. 

^ See Blakemore v. Company, 8 El. & B. 1051; Anderson v. Buckton, 1 Str. 192. 

Davies v. Jenkins, 11 Mees. & W. 755. 



special sitaatioD of agreement inter sese^ affording occasion for 
breaches of duty between them that need not be treated as 
breaches of contract. The first is the most extensive division. 
The law relating to the following subjects belongs to it : Deceit, 
in part, slander and libel, malicious prosecution, conspiracy, 
assault and battery in part, false imprisonment in part, enticement 
and seduction, trespasses upon property in part, conversion, in- 
fringements of patents and copyrights, violation of rights of sup- 
port, violation of water rights, nuisance, damage by animals, es- 
cape of dangerous elements or substances, and negligence in part. 
Under the second division, where ^ duty has been broken which 
prevails because the parties concerned occupied a special situa- 
tion towards each other, not produced by agreement inter sese, 
will fall the law relating to public officers, (including that part 
of the law relating to assault and battery, false imprisonment, 
and trespasses upon property, not embraced under the first head) 
and the law relating to the duty of innkeepers to receive guests 
and of common carriers to receive passengers or goods, accord- 
ing to the nature of their business and the law of waste. Under 
the third subdivision, where parties occupy a situation of agree- 
ment among themselves, affording opportunity for breaches of 
duty that need not be treated as breaches of contract, will fall 
a part of the law relating to deceit, which is also embraced 
under the first head, as deceit in sales, in which the wrong may 
be treated as either a tort or a breach of warranty, and the law 
relating to innkeeper and guest, common carriers, and other 
biulees, several of these subjects being also embraced under the 
title negligence. In cases of deceit, slander and libel, malicious 
prosecution, and conspiracy, the essential feature is the peculiar 
animus or intent which is or may become necessary to a right 
of redress for the alleged bjeach of duty. In cases arising 
under any of these heads, an issue based on the circumstances 
of the alleged tort may in most cases be raised concerning the 
animus. In cases arising under any of the following heads, the 
existence or non-existence of the animus is immaterial so far as 
the right to redress is concerned, the law conclusively presum- 
ing that the act, if proved, was intended : Assault and battery, 
false imprisonment, enticement and seduction, trespasses upon 
property, conversion, infringements of patents and copyrights, 


violation of riglits to support, violation of water rights, nuisance, 
damage by animals, and C8ca{>c of dangerous elements or sub- 
stances, although in assault and battery the question of intent 
does become material in some cases.^ 

To adopt another grouping of subjects, there may be injuries 
to the person, resulting in death or in serious disability, as in 
cases of assault and battery; injuries to both persons and 
property resulting from negligence ; injuries to liberty, such as 
false imprisonment ; injuries to personal property ; injuries to 
real property, as trespass ; injuries through misfeasance, mal- 
feasance, or non-feasance of jpublic officers. There may also be 
cases of malicious prosecution, fraud, and deceit, and injuries to 
reputation, such as libel and slander. Or, again, there may be 
injuries to the absolute rights of persons, including injuries to 
the body, as assault and battery, false imprisonment ; and inju- 
ries to the health ; injuries to the reputation, as libel and slan- 
der, malicious prosecution ; injuries to the relative rights, aa to 
people in their public relations, including wrongs committed by 
judicial and ministerial officers ; and in their private relations, 
including those of master and servant, parent and child, hus* 
band and wife, etc. ; and also cases of joint ownership, and 
matters arising from injuries by incorporated companies. Al- 
though, as wc have seen, a case of damnum absque injuria is 
not a case of tort, wc arc treating of the subject in its relation 
to the law of torts, and wc shall therefore use in the succeeding 
chapters the various headings of the law of torts in the subdi- 
visions of this book. The classification adopted will be indicated 
in the next chapter. It will follow more nearly the last-men- 
tioned classification than the first. 

§ 4. Definition of the term " damnum absque injuria." — 

Wc will now further attempt, by definition and illustration, to fix 
the meaning of the term. The literal definition of the term dam- 
num absque injuria is damage without injury. But this savors 
somewhat of a contradiction of terms, since it is difficult to con- 
ceive of a damage done without a corresponding injury to the 
party damaged. If we enlarge our definition to some extent, but 
still confine ourselves to the definitions of Latin lexicographers, 

^ Blgelow's Elements of the Law of Torts, Introd. 


we find that the term may mean damage, loss, harm, injury, or 
hurt without wrong or injustice ; and from these definitions we 
may select the one usually given in the books — that of injury with- 
out wrong.^ But still, before we arrive at a satisfactory under- 
standing of the term as used by the profession and by writers, 
resort must be had to some paraphrase, such as ^^ injury or dam- 
age done to a person, and for which the law provides no remedy," 
or '* injury without wrong in contemplation of law," or " injury 
or damage without legal wrong." ^ 

Damage is defined to be the loss caused by one person to 
another, or to his property, either with the design of injuring 
him, or with negligence and carelessness, or by inevitable acci- 
dent. He who has caused the damage is bound to repair it, 
and if he has done it maliciously, he may be compelled to pay 
beyond the actual loss. When damage occurs by accident, 
without bliime to any one, the loss is borne by the owner of the 
thing injured ; as, if a horse run away with his rider, without 
any fault of the latter, and injure the property of another per- 
son, the injury is the loss of the owner of the thing. When 
the damage happens by the act of God* or inevitable accident, 
as by tempest, earthquake, or other natural cause, the loss must 
be borne by the owner.* 

Strictly speaking, injuria is a wrongful act or tort, that re* 
lates to the defendant. Damnum is the loss sustained or harm 

1 Anthon's lAt. Die. ad verb. ; Bouv. Die. ; Broom Max. 1. 

> Dctmnum, at the civil law, was considered to be the diminntion of a man's 
property, and was treated of in the digest according as it was factum^ (already 
done) or ii^ectumt (apprehended or threatened). The former, more usually 
termed simply damnum^ might arise from a mere accident or from the free will 
of another. If it arose in the latter way, it might have arisen in the exercise of 
a right enjoyed by the person causing it, and then no reparation had to be made 
for causing it, non videtur vim facere qui Jure sua utitur, (D. xxxix, 2; D. L, 17, 
155); or it might have been done wrongfully, and then the person injured was 
entitled to comx>ensation. 

At the civil law, injuria^ in its general sense, signified every action contrary 
to law; in a special sense, it meant sometimes the same as contumcliay (outrage) 
which is derived from contemnere^ sometimes the same as culpa^ (fault) and 
sometimes it had the sense of iniquity or injustice; for a person against whom 
the pnctor or judge pronounced an unjust sentence was said to have received 
an injuria. (D. xlvii, 10, 1; Institutes of Justinian, lib. iv, tit. iv.) Ir\juria, 
then, was used in three senses: 1. A wrongful act— an act done naOo jure; 2. 
A fault committed by a judge who gave judgment not according to jus ; 3. An 
outrage or affront. 

*Com. Dig. Damage; Bouv. Diet, adverb. 


done as a consequence of an injury, and relates to the plaintiff. 
But the terms are often used in a different sense. The injury 
must not only be a violation of a right which the plaintiff is en- 
titled to enjoy, but it is essential to the maintenance of an action 
for the same that the plaintiff suffer legal damages thereby. 
There are a large number of acts done, and accidents and casu- 
alties occurring, and so there may be a lawful use of one*s own 
property by which losses occur to others, but for which the law 
affords no remedy.^ These arc all cases of damnum absque inr 
jurid. The wrong or injury, however great, is not one in the 
eye of the law — ^not recognized as such by the law. The estab- 
lishment, for instance, of a rival school, which draws away 
scholars from one previously established, is illustrative of such 
a loss. So a man may lawfully build a wall on his own grounds 
in such a manner as to obstruct the light of his neighbor, who 
may not have acquired a right thereto by grant or adverse use ; 
he may obstruct the prospect from his neighbor's house ; he may 
build a mill near that of his neighbor, to the damage of the lat- 
ter by loss of custom; he may by digging in his own land inter- 
cept or draw off the water collected from under-ground springs 
in his neighbor's well. These are cases of damnum absque in- 
jurid^ which cannot become the grounds for an action.^ So 
where neither party is particularly in fault, and an accident to 
one occurs through the acts of both, it is damnum cAsque inn 
juridy and the party damaged cannot recover.^ And an action 
will not lie against a railroad or turnpike company for building 
a road with proper care and prudence, which is authorized by 
statute, although property in the vicinity is thereby damaged, 
as the act is lawful, and the damage arising from its proper 
construction on its own land is damnum absqite injuridJ^ Inja« 
ries may arise in three ways — first, by non-feasance, or the not 
doing what was a legal obligation or duty or contract to perform ; 
second, misfeasance, or the performance in an improper manner 
of an act which it was either the party's duty or his contract to 

I Eogers v. Dutt, 13 Moore P. C. C. 209: Panton v. Holland, 17 Johns. 100; The 
Eleanor, 2 Wheat. 35S. 

3 Broom's Leg. Max. 197; In re Penny, 7 £1. & B. 660; Field on Damages, sees. 

^Rowland v, Vincent, 10 Met. 571. 

4 Drake v. Hudson R. B. R. Co. 7 Barb. fiOS. 


perform; third, malfeasance, or the unjust performance of some 
act which the party had no right or which he had contracted 
not to do. In general the law interferes only when there has * 
been a visible physical injury inflicted, while it leaves almost 
totally unprotected the whole class of the most malignant men- 
tal injuries and sufferings, unless in a few cases where, by a 
fiction, it supposes some pecuniary loss, and sometimes affords 
compensation to wounded feelings. A parent, for instance, can- 
not sue (except when allowed by statute) for an injury inflicted 
on his child, or the seduction of his daughter, unless the fact 
will sustain the allegation that the daughter was his servant. 
Another instance at common law arises from verbal slander, for 
which in many cases a party cannot recover damages, as when 
the facts published are true, for the defendant would justify, 
and the party injured must fail. Perhaps the true reason is the 
uncertain character of the injury inflicted, the impossibility of 
compensation, and the danger, supposing a pecuniary compensa- 
tion to be attempted, that injustice would be done, through un- 
due excitement. The idea is to inflict a punishment for crime, 
but not put up for sale, by the agency of a court of justice, 
those wounded feelings which would constitute the ground of 
the action.^ 

§ Su Injnzia Bine damna — ^The plaintiff can sustain no 
legal damage unless he has a right or interest subject to, or sus- 
ceptible of, damage or injury. The plaintiff to sustain an action 
must have such -right or interest. It is not enough that an un- 
authorized act or injury be done, but the plaintiff must sustain 
a loss by reason thereof, and must have a right or interest to be 
impaired. Without this, where there is injuria^ it is injuria 
sine damno^ without damage to the plaintiff, and he is without 
a remedy. The plaintiff must show not only injuria^ but an in* 
vasion of some right or interest which he is entitled to enjoy to 
the exclusion of others. And if the wrong consists in non- 
performance or misperf ormance of a duty he must show he was 
entitled to the performance of the duty, and not some other 
party, or he can recover no dami^s.^ 

1 Bout. IHct.— Injniy. ^ Field on Damages, sea 634. 

10 INTBODUCTOBT. §§ 6-7 

§ 6. The right to damages. — ^There is, then, no right to 
damages where there is no wrong. It is not requisite that there 
. should be a tort strictly speaking, that is to say, a willful wrong, 
an act involving moral guilt. The wrong may be cither a will- 
ful, malicious injury, as in the case of assault and battery, libel, 
etc. ; or one committed tlirough mere motives of interest, as in 
some cases of conversion of goods, trespasses on lands, etc. ; or 
it may consist in a mere neglect to discharge a duty with suita- 
ble skill and fidelity, as where a surgeon is held liable for mal- 
practice, or sheriff for an escape.^ 

§ 7. The remedy for wrongs^ — ^Among the old maxims of 
the law is to be found the one that for every wrong there is a 
remedy .2 Whenever the law creates or recognizes a private 
right, it is also supposed to give a remedy for violation of it.' 
The general principle that whenever there is fraud or deceit by 
the one party and injury to the other, or damnum cum injuricL^ 
there an action will lie, is very often referred to with approbation, 
and generally recognized as law.^ But these principles, however 
true as general propositions, must be understood with such qual- 
ifications and limitations as other principles of law, equally sound, 
necessarily impose upon them. There may be many moral 
wrongs, for which there can be no legal remedy. And there 
may be many acts in which the damage to individuals may be 
very great, and yet so remote, contingent, or indefinite as to 
furnish no good ground of action. Thus, to maintain an action 
for the deceit or fraud of another, it is indispensable that the 
plaintiff should show, not only that he had sustained damage^ 
and that the defendant has committed a torU but that the dam- 
age is the clear and necessary consequence of the tort, and that 
it can be clearly defined and ascertained. So, an action on the 
case for the fraud of the defendant in purchasing personal 
property of the plaintiff's debtor, and aiding the debtor to ab- 
scond, in order to prevent the plaintiff from enforcing payment 
of his debt by attaching the property or arresting the body of 

i Bouv. Die. ad Verb. * 

2 3 Bl. Com. 123; Ashby v. White, 1 Salk. 21. 
8 1 Clilt. PL 83; 11 Johns. 140. 

^ Upton 17. Yall,C Johns. 182; Fa^ey v. Freeman, 3 T. R. 51; Eyre o. Dnxia- 
f ord, 1 East, 329. <; 


the debtor, cannot be sustained ; but the proper remedy is either 
to attach, specifically, the property fraudulently transferred, or 
to attach it in the defendant's hands by proceedings in the na- 
ture of a garnishment — provided the plaintiff has no special 
property, or any interest in or claim on any property which was 
destroyed or injured by any act of the defendant^ 

§ 8. Oaneral illnstrationB. — Damages from lawful acts 
cannot usually be made the basis of an action. In the absence 
of negligence, unskillfulness, or mismanagement of a railroad 
compahy, in the construction of an embankment for the bed of 
its road, over land through which it passes and through which 
there is no natural channel for the passage of water, the injury 
done by such embankment, in causing water to overflow land of 
adjoining proprietors, is considered as the natural consequence 
of what the company had a lawful right to do, by the condem- 
nation of the land and the payment of damages therefor, and 
the subsequent damage sustained thereby by the adjoining pro- 
prietors is damnum absque injuria^ for which no further com- 
pensation can be recovered.^ 

So where an incorporated town or city grades its streets, or 
changes its grade so as to leave the lots of the adjoining pro- 
prietor either above or below the grade, and thereby depreciates 
its value, it seems to be established by an overwhelming weight 
of authority that it is damnum absque injuria^ and no damages 
can be recovered.* There seem to be exceptions to this rule in 

1 Lamb v. Stone, 11 Pick. 526; Yemon v. Keyes, 12 East, 632. See Smith v. 
Blake, 1 Day, 258; Seehom v. Darwin, 1 Const. S. G. 19G. 

< Clark V, Hannibal Co. 36 Mo. 202 ; McCormick v. Company, 57 Mo. 433. 

s Beading r. Keppleman, 61 Pa. 233; City of Pontiac v. Carter, Am. L. T. Aug. 
1875, x>er Cooley, J.; Callender v. Marsh, 1 Pick. 418; Griggs v. Foot, 4 Allen, 
106; Benjamin v. Wheeler, 8 Gray, 409; Green r. Beading, 9 Watts, 382; 20 How. 
149; Henry r. Company, 8 Watts & S. 85; O'Connor v, Pittsburgh, 18 Pa. 187; 
Smith tr. Washington, 20 How. 135; Macy f. City, 17 Ind. 267; Terr© Haute t;. 
Turner, 36 Ind. 522; Hoffmah v. St. Louis, 15 Mo. 651; Badcliffe v. Mayor, 4 
Comst. 195; Graves r. Otis, 2 Hill, 466; Wilson v. iMayor, 1 Denio, 595; Mills v. 
Brooklyn, 32 N. Y. 489; Waddell v. Mayor, 8 Barb. 95; Reynolds v. Shrevesport, 
13 La. An. 426; Bome t\ Omberg, 28 Ga. 46; Boll v. Augusta, 34 Ga. 326; Skin- 
ner V. Company, 29 Conn. 523; Summers v. Camden, 26 Ark. 270; S. C. 7 Am. 
Law Beg. 820; Schatti\er v. City, 53 Mo. 162; Taylor r. St. Louis, U Mo. 20; 
HoTey V. Mayo, 43 ^le. 322; Ellis v. City, 29 Iowa, 229; Dorman v. Jacksonville, 
13 Fla. 538; S. C. 7 Am. Law Beg. 233; Burlington t'. Gilbert, 31 Iowa, 356; 
White ». City, 27 Miss. 327; Commissioners v. Withers, 29 Miss. 21; Murphy v. 
Chicago, 29 III. 279; Boberts v. Chicago, 26 111. 249; Humes r. Mayor, 1 Humph. 


Illinois ^ and Ohio. In the latter State, where improvementa 
have been made in accordance with an established grade and 
damages arise from a change of grade, th^ injured party has 
been allowed to recover.^ 

Where an act, authorized by law, gives rise to damages, it is 
therefore generally damnum absque injuria ; and where an un- 
authorized act results in detriment or loss to another, if it is not 
a damage in contemplation of law, it is injuria sine damno. The 
injury must be such as the law regards as an injury, as it is not 
every loss that results to the plaintiff, through the act of the de- 
fendant, for which damages may be recovered.^ 

So where, by the working of a mine or the digging of a well 
on the lands of the owner, the subterranean veins and channels 
which supply the well of another on adjoining lands are cut off 
and the supply of water to the latter prevented, this is damnum 
absque iryuria^ and affords no ground for damages.^ Where a 
stream is caused by artificial means, and is an artificial stream, 
and the works at its source which caused it are suspended, 
whereby the supply of water below is cut off and ceases, the 
party benefited by the flow through his lands can maintain no 
action against the party thus causing its suspension, if he has no 
legal right to the water thus suspended.^ A person cannot main- 
tidn an action for damages on account of animals ^erce naturtB;^ 

403. See/ also, Plate Gloss Co. v. Meredith, 4 T. R. TiH; Bolton r. Crowther, 2 
Bam. & G. 703; King v. Commissioners, S Bam. & C. 365; Fayette v. Bush, 19 
Ind. 326; Bounds t;. Mumford, 2 B. I. 154; Keasy v. Louisville, 4 Dana, 154; 
Alexander v. Milwaukee, 16 Wis. 247; Qoszler v. Georgetown, 6 Wheat. 593. 

1 Kevins v. Peoria, 41 HL 502; Aurora t\ Beed, 57 HI. 29; Aurora v. GiUett, 56 
m. 132. 

8 McGombs v. Akron, 15 Ohio, 474; 18 Ohio, 229; Crawford i\ Delaware. 7 Ohio 
St. 459. See Bhodes t\ City, 10 Ohio, 150. 

In Iowa the general doctrine was recognized, but a statute afterwards pro- 
vided that, "where any city or town shall have, established the grade of any 
street or alley, and any x)erson shall have built or made any improvement on 
such street or alley according to the established grade thereof, and said city or 
town shall alter said established grade in such a manner as to injure or diminish 
the value of said property, said city or town shall pay to the owner or owners 
of said property so injurpd the amount of such damage or injury." (Sec. 469, 
Code 1873.) 

« Donovan v. City, 11 La. An. 711. 

* Acton V. Blundoll, 12 Mees. & W. 324; Chasemore v, Bichards, 2 HurL & K. 
168; S. C. 7 H. L. Cas. 349; South Shield W. W. Co. t;. Cookson, 15 Law J. 

s Gavel v. Martyn, 19 Com. B. N. S. 732; NutaU v. Bracewell, L. B. 2 £x. 1. 

^ 2 Blackst. Com. 389; Gellett v. Mason, 7 Johns. 16; 1 Hill. Torte, 479. 


or for an entry upon his lands from necessity, as where a traveler 
in a highway is prevented from proceeding therein by reason of 
an overflow of water or drifts of snow, and he enters upon the 
adjoining lands to avoid the obstruction ; ^ or for the pulling 
down of a house, when necessary to arrest the progress of a fire. 
Solus populi suprema lexy and it is damnum absque injuria,^ A 
person has also a right to carry off the surface water from his 
land, by filling wet or marshy places, and if damage is thereby 
sustained by the adjoining owner, it is damnum absque injuria, 
A person may fill up low places on his lot, or erect buildings 
which divert the surface water from his own land, and the city 
may divert surface water, and no compensation can be recovered 
farther than that considered in the original condemnation of the 
street ; but neither the individual nor the corporation can inter- 
fere with the natural flow of water, and make drains and collect 
the water in a body, and precipitate it in a greatly increased or 
unnatural quantity upon an adjoining proprietor to his injury.^ 
Neither a State nor a person, artificial or natural, acting by 
its authority or command, under a law which the legislature is 
competent to make, is answerable for consequential damages 
occasioned by the construction of a highway, further than hap- 
pens to be specially provided. But the authority of the State 
cannot be implied for negligence or a gratuitous injury. For 
unavoidable damage, however, in the accomplishment of the 
object a defendant is not liable.^ 

§ 9. TTsa of one's own property. — An owner of land 
made an excavation therein within a foot or two of a public 
street, and used no precaution against the danger of passengers 
falling in. A person passing in the night time went over the 

1 Absor V, French, 2 Show. 28; Daws r. Hawkins, 8 Com. B. N. S. 848; Taylor 
V. Whitehead, 2 Dong. 749; Bnllard r. Harrison, 4 Manle & S. 393. 

'BnaseU v. Mayor, 2 Den. 461; Mayor v. Lord, 17 Wend. 285; 2 Kent's Com. 
333; Field v. City, 39 Iowa, 575; Field on Damages, sec. 40. 

» Goodale v. Tuttle, 29 N. Y. 459; Wheeler v. Worcester, 10 Allen, 591; Gannon 
V. Haigadon, 10 Allen, 106; Dickinson v, Worcest«r,.7 Allen, 19; Dellii v. Yon- 
mans, 50 Barb. 316; City v, Gilmer, 33 Ala. 116; Imlar v. Springfield, 55 Mo. 119; 
liTingston v, McDonald, 21 Iowa, 116; Flaggv. Worcester, 13 Gray, 601; Miller 
r. Lanbacb, 47 Ga. 260; Aurora v. Keed, 57 111. 30; Penoyer r. Saginaw, 8 Mich. 
534; Sonth. L. Bev. vol. 1, p. 210; 1 Smith L. Cas.; Har. & W. Notes, 361. 

* Henry v. Company, 8 Watts & S. 85; Monongahela Co. v. Coons, 6 Watts & 
a 101; Philadelphia & Trenton B. B. Co. In re, 6 Whart. 43. 


line of the street, fell into the excavation, and was injured. It 
was not disputed that the defendant had the right to excavate 
the earth for the purpose of making cellar rooms under that 
portion of the estate where the accident happened. There was 
no pretense that the defendant was actuated by malice, and the 
only question was whether he was guilty of such negligence as 
to expose him to the plaintifiTs demand for damages by reason 
of the injury sustained, on the application of the maxim, sie 
utere tuo ut alienum non Icedas. The defendant had a right to 
dig to the line of his estate, and as between abutters such dig- 
ging is justified by ancient and modem decisions, on the princi- 
ple that the proprietor has entire dominion over the whole of 
his own estate.^ The defendant did a lawful act on his own 
premises, and was considered not responsible for the injurious 
consequences ensuing, unless it was so done as to constitute 
actionable negligence, which presents a different question. Nor 
did it alter the case that the plaintiff was not particularly guilty 
of negligence. She went out of the highway, and met with the 
accident. Where neither party is in fault, and an accident takes 
place, it is equally an instance of damnum absque injuria.^ So it is 
laid down in Com. Dig., (Action upon the Case for a Nuisance, 
^ C ") that the action does not lie if a man makes a ditch in his 
waste, which lies near the highway, within thirty-six feet of the 
highway, into which the horse of another falls ; for the ditch in 
his own soil was no wrong to the other, but it was his fault that 
his horse escaped into the waste.^ Cases where the acts nre 
lawful in themselves, but are done so negligently that an injury 
immediately follows to the property or person of another, by 
reason of the negligence^ as a fire kindled negligently, shooting a 
gun carelessly, neglecting to take care of a dog, knowing that he 
will bite, rest, as already stated, on entirely different principles.^ 

§ 10. Contribntory negligence. — When a party injured 
contributes to the injury in some material way, it is generally 

2 2 Roll Abr. 065; 1 Ibid. 88; Thurstoii v. Hancock, 12 Mass. 220; Panton v. 
Holland, 17 Jobns. 92. 

^Howland v. Vincent, 10 Mete. Mass. 371; Blyth v. Topbam, Cro. Jac. 158. 

•IRoll. Abr. 88. 

^Com. Dig. Action on tbe Case for Negligence, "A/* 5, 6; Clark v. Foot, 8 
Johns. 421. 



8ii£Scient to defeat the right of recovery. If some part of the 
loss IS attributable to the contributory act or negligence of the 
plaintiff, and a portion not, ho can only recover for such loss as 
accrued without his fault ; for no one is allowed to derive an 
advantage from his own wrong. And where the wrong is 
equal, the condition of the defendant is the best, and the 
plaintiff is without remedy. The defendant may usually show 
that the plaintiff brought, or materially contributed to bring, 
the injury upon himself.^ The subject will be more fully dis- 
cussed hereafter. 

§ 11. Ttifling injuries. — Cases of trifling injury, where no 
action can be maintained, are properly cases of damnwm absque 
injuria. The law will not encourage useless or malicious litiga- 
tion, and although there be a trifling infringement of right, 
yet if it be so trifling as to come within the purview of the 
maxim de minimis non curat lex^ there is no remedy for it, 
and the plaintiff cannot recover even nominal damages. The 
law disregards it altogether. As where an ofiicer who had 
attached a quantity of hay used a pitchfork belonging to the 
debtor for the purpose of removing it, and when he had com- 
pleted the work returned it uninjured to the place where he 
found it, where it was received by the debtor, the officer was 
held not liable for the use of the fork.^ And where the action 
was brought for an escape on mesne process, but the prisoner 
had returned to the custody of the sheriff, and no actual dam- 
age had been sustained, it was held that not even nominal 
damages could be recovered.^ 

So, every proprietor of land on the banks of a river has nat- 
urally an equal right to the use of the water flowing in the 

^ Frazer v, Berkley, 7 Car. & P. G21; Bobinson v, Hupert, 23 Pa. 554; Evans r. 
Wataon, 56 Pa. 54; Prentice v. Shaw, 50 Mo. 427; Field on Damages, sec. 24, 
chap. 10. See po^t^ Chapter XII. 

In an action against a city to recover damages caused by a defective highway 
on which plaintiff was passing in a hired carriage driven by a friend, it was held 
that contributory negligence in the driver would defeat plaintifTs recover3% 
(Prideanx r. Mineral Point, 43 Wis. 5ia) 

> P^ul V. Sloeon, 22 Vt. 231 ; Broom's Leg. Max. 143. But see Fullam v. Steams, 
» Vt. 443. 

s Williams v. Mostyn, 4 Mees. & W. 144 ; Young v. Spencer, 10 Bam. & C. 145; 
S. C. 21 Eng. C. L. 47. 


adjacent stream as it was wont to run without diminution or 
alteration. But, streams of water being intended for the use 
and comfort of man, it would be unreasonable, and contrary to 
the universal sense of mankind, to debar every riparian propri- 
etor from the application of the water to domestic, agricultural, 
and manufacturing purposes, if the use be made without causing 
material injury or annoyance to the lower proprietor. There 
may be in such coses some decrease in the volume of water and ' 
the velocity of the current, but the maxim ^^ de minimis " is 
applied, and the lower proprietor does not necessarily have a 
right of action.^ The same principle applies to the rights to air 
and light, and as long as the reasonable use of these things does 
not produce any actual or perceptible damage to the right of 
another to a similar use of them, no action will lie. A man 
cannot occupy a dwelling, and consume fuel in it for domestic 
purposes, without in some degree impairing the natural purity 
of the air. He cannot erect d dwelling nor plant a tree near 
the building of another without in some degree diminishing 
the quantity of light he enjoys ; but such small interruptions 
give no right of action, because they are necessary incidents to 
the common enjoyment by all.^ 

§ 12. Interference with trade. — ^Interference with anoth- 
er's trade by fair competition is never actionable. The loss in 
such case, though a damage, is not considered to be caused by 
a wrong. It is the exercise of a right, causing no more detri- 
ment than is necessarily the result of artificial society and legiti- 
mate business enterprises.^ If a fisherman fits out a boat with 
lines and nets and goes to fish in the high seas, and another 
fisherman comes and fishes beside him, and with tempting huts 
or other contrivances draws away the fish from the lines and 
nets of the first comer, and obtains them himself, an injury is 
done, but there is no tort or wrong, for one has as much right 
as the other to fish on the high seas ; but the rival fisherman has 
no right to lay hold of the other's net, or violently disturb the 

1 Sampson v. Hodinott, 1 Com. B. K. S. 590; Embrey v. Owen, 6 Ex. 369; Miner 
r. Gilmour, 12 Moore P. C. C. 131; NuttaU v. BraceweU, 4 HnrL & G. 714; Wood 
I'. Wand, 3 Ex. 748. 

s Embrey v. Owen, G Ex. 309. 

• Rogers v. Dutt, 13 Moore P. C. G. 24L 


water and drive away the fish, and thus vlolentlj prevent the 
other from exercising his calling.' 

§ 13. Injuries committed through necessity. — Compul- 
sory and involuntary acts, as a general rule, exempt a person 
from liability, and the sufferer has no redress. There may be a 
necessity to do an injury, resulting from the instinct of self- 
preservation ; from the actual necessity of obeying a higher and 
controlling power, or necessity resulting from the act of God or 
of a stranger.^ The illustration of the first case usually given 
is, where two persons, being shipwrecked, have got on the same 
plank, but finding it not able to save them both, one of them 
thrusts the other from it, and the latter is drowned. The sur- 
vivor cannot be held liiable to the relatives of the victim for the 
great injury inflicted, nor is the act considered any other than a 
justifiable homicide. The act is regarded as done through una- 
voidable necessity, and excused upon the right of self-preserva- 
tion. If a ferryman overload his boat with merchandise, a pas- 
senger may, in case of necessity, and to save his own life and 
that of his fellow passengers, throw the goods overboard, or at 
all events 8u£5cient of them to lighten the boat and afford safety.^ 
Obedience to existing laws will, as a general proposition, render 
an injury inflicted in obeying them damnum absque injuria — as 
when a proper officer executes a criminal in strict conformity 
with his warrant for so doing issued upon a legal sentence, and 
where he properly executes legal process. He is the servant of 
the law, and acting in obedience to it. 

§ 14. Rnles of pnblic policy — ^Eminent domain, etc. — 
That regard be had for the public welfare is the highest law. 
Solus populi suprema lex. There is an implied assent on the 
part of every member of society, that his own individual welfare 
shall in cases of necessity yield to that of the community, 
and that his property, liberty, and even his life shall, under 
given circumstances, be jeopardized or sacrificed for the public 

1 YoQBg V. Hichens, G Q. B. 006. 

3 Bao. Max, reg. 5; 1 T. B. 02; Broom's Max. *11. 

s Moose'H Case, 12 Rep. G3. 

* Garland r. Carlisle, 2 Cromp. & M. 77; S. C. 4 Clark & F. 701. 

D. A. I.— 2. 


good.^ There are many cases, therefore, in which individuals 
sustain an injury for the public good, and for which the law gives 
no action, as where private houses are pulled down or bulwarks 
raised on private property for the preservation and defense of 
the State against public enemies. Commentators on the civil 
law have said that in such cases those who suffer have a right to 
resort to the public for satisfaction,^ but the common law never 
gave an action against the indvoidual who pulled down the 
house or raised the bulwark ; ^ and so, on the same principle, a 
man may justify committing a private injury for the public 
good, as pulling down a house when necessary to arrest the 
progress of a fire.^ Upon the kindred principle that a private 
mischief shall be endured rather than a public inconvenience, if 
a highway be out of repair and impassible, a passenger may 
lawfully go over the adjoining land, since it is for the public 
good that there should be at all times free passage along thor- 
oughfares for citizens of the State.^ So if a traveler on a high- 
way, by unexpected and unforeseen occurrences, as a sudden 
flood or heavy drift of snow, is so obstructed that he cannot 
reach his destination without passing over adjacent lands, he is 
privileged so to do. The temporary and unavoidable use of 
private property, under the circumstances, is regarded as one 
of those incidental circumstances to which all property in a 
civilized community is subject. It is for the general good. 
The party is not a trespasser and the owner of the property 
has no redress against him. If there is damage in the proper 
and reasonable exercise of the right necessitated by the occa- 
sion, it is damnum absque injuria and no action will lie.^ So, 

1 Broom's Leg. Max. 1 ; Bacon Max. Beg. 12; Grotius, De Jure Belli, bk. 3, cUap. 
20, s. 7, sec. 1; Mont. Esp. des Lois, L. 27, chap. 23. In casa extrenuB necesBUaUt 
omnia nmt communia. (1 Hale P. G. M). 

s Puff. De Jure Nat bk. S, chap. 5, sec. 7; Grotius De Jure BelL et Pac. bk. 3, 
chap. 20, 8. 7, sec. 2. 

•Plate Glass Co. v. Meredith, 4 T. B. 797; West Biver Bridge Ck>. v. Diz.C 
How. 545; Mitchell v. Harmony, 13 How. 115; Koy, Max. 0th ed. 36; Dyer, GO 6, 
12 Bep. 12, 13. 

*Noy,Max. 9thed.36; Dyer,aS&. 00&; 12 Bep. 12; Plow. 322; Finch, 39; Bus- 
sell V. New York. 2 Denio, 461, 474. 

c Absor V. French, 2 Show. 28; A. G. v, Briant, 15 Mees. & W. 185; 2 Kent. 
Com. 390. 

« Taylor v. "Wliitehead, 2 Doug. 749. per Ix>rd Mansfield, C. J.; BuUard v. Har- 
rison, 4 Maulo & S. 393, per I^rd Ellcnborough, C. J.; Dawes v, Hawkins, 8 0. 
B. N. 8. 818; 98 £ng. C. L. B. ; Bobertsou v. Gantlett, IG Mees. &; W. 296. 


alaoy as to more ordinary occurrences, where the le^slature, 
on account of public utility, disturbs the possession or restricts 
the enjoyment of the property of individuals, as in cases of 
distresses, executions, forfeitures, confiscations, taxes, etc. ; but, 
of course, the legal authority must be clear and distinct.^ 
And for the public utility, the legislature may interfere with 
private property, and compel the owner of land to alienate his 
possessions, on receiving a reasonable price and compensation ; 
but the power is not to be exercised to a greater extent than 
is absolutely necessary for the public welfare.^ So, where 
commissioners appointed by a paving act occasioned damage to 
an individual, without any excess of jurisdiction on their part, 
neither the commissioners nor the paviors acting under them are 
liable to an action, the statute under which the commissioners 
acted not giving them power to award satisfaction to the individ- 
uals who happened to suffer ; and it was said that some individ- 
uals suffer an inconvenience from all such statutesii but the 
interests of individuals must give way to the accommodation of 
the public.^ It is necessary, however, that there be no negli- 
gence in the performance of the acts allowed, and that they be 
done with full authority from the law. 

§ 15. Assumption of family names. — The right of a 
person to a particular name is not recognized to the extent of 
entitling him to prevent the assumption of that name by a* 
stranger. The right to the exclusive use of a name in connec- 
tion with a trade or business is familiar to English and Ameri- 
can law, and any person using that name after a right to it has 
been acquired by another is considered guilty of a fraud, or, at 
least, of an invasion of another's right, and renders himself lia- 
ble to an action, or he may be restrained from the use of the 

1 A. 0. V. Lockwood, 9 Mees. & TV. 4D1; Entick v. Caninfcton, 19 How. St Tr. 
1066; Goeling v. Veley, 12 Q. B. 407; a C. 4 H. L. Cas. 727; Binder v, Yeley, 12 
Ad. & E. 247; Denn v. Diamond, 4 Bam. & G. 245; A. O. v. Middleton, 3 HarL 
& N. 138; Broom's Leg. Max. *3. 

'Tawney v. Lynn, &c, IGL. J. Ch. 282; 1 Mylne & K. 162; Webb v. Man« 
cheater &c, 4 Mylne & C. 116; Simpson v. Howden, 1 Keen, 598; Lister v. Lob- 
ley, 7 Ad. & £. 124. 

> Plate Glass Co. v. Meredith, 4 Term Bep. 794; Boulton v. Crowther, 2 Bam. 
& C. 703; Alston v. Scales, 9 Bing. 3; Sutton v. Clark, C Taunt. 29; Wilson v. 
Mayor, 1 Denio, U. S. 595; Pilgrim v, Southampton &c. 7 Com. B. 228; Mayor t*. 
Company, 2 DeGex, M. & G. 852. 

20 INTBODUCTOBY. §§ 16-17 


name by injunction. But the mere assumption of a name which 
is the patronymic of a family by a stranger who had never 
before been called by that name, whatever cause of annoyance 
it may be to the family, seems to be a grievance for which the 
law affords no redress, and which is dafMiuvn cibsque it^ria*^ 

§ 16. InjnrloB arising from felonies. — ^Where the act of 
another, though productive of injury to an individual, amounts 
to a felony, the private remedy is (unless a statute intervenes ^ ) 
suspended until justice is satisfied. So a man cannot make a fel- 
ony the ground of a civil action, nor waive the felony and go for 
damages ; and where, at the trial of an action, the case is found 
to involve a charge of felony against the defendant which has 
not been prosecuted, the Court may properly direct a verdict to 
be entered in his favor .^ But this does not apply to mere mis- 
demeanors, such as assault, battery, etc. 

§ 17. Xnjnrles by grantees of franchises. — When prop- 
erty is actually taken for public works, the constitutions of the 
States generally declare that compensation must be made ; but 
there are cases where consequential injuries may be inflicted by 
the grantees of a franchise ; and the general rule, in the absence 
of constitutional or statutory provisions, is, that if the grantees 
or agents have not exceeded the power conferred on them, and 
when they are not chargeable with want of due care, no claim 
can be maintained for damages resulting from their acts. So, 
it is held that a party obstructing a stream by a railway, built 
pursuant to legislative authority, and thereby causing the lands 
of the adjacent proprietors to be overflowed, is liable only for so 
much of the injury as results from not providing necessary safe- 
guards ; and the same principle is applied to damage done by 
municipal corporations in making improvements authorized by 

I Da Boulay v. Bu Boulay, L. R. 2 P. C. 441. 

s See Buch a statute, 9 and 10 Vict. chap. 93, amended by 27 and 28 Vict, cliap. 

A Stone V. Marsh, G Bam. & 0. 557; Wellock v. Constantino, 2 Hurl. & C. 146; 
Pym v. Company, 2 Best & Smith, 759; 4 Ibid. 396; White v. Spettigue, 13 Mees. 
&\y. G03; Lee v. Bayes, 18 Coul B. 599; Choune v. Baylis, 31 L. J. Ch. 7;>7; 
Crosby v. I^ng, 12 East, 409: Williams f;. Bay ley, K R. 1 H. L. 200; 1'} Aloes. & 
W. 008; Higgins v. Butcher, Yelv. 89. 


law.^ A municipal corporation is not liable for damage to pri- 
vate property, unless the act complained of was without author- 
ity of or against law, or was improperly or wantonly executed.^ 
It is said that if different rules should prevail, the absurdity 
would follow that operations undertaken and conducted by vir- 
tue of the supreme authority are unauthorized in the view of 
the law and constitute a foundation for damages. ^^ The proper 
light in which to regard the matter is, to consider the grantee 
of the franchise, or the public agent, so long as he does not 
transcend the authority conferred on him, as representing the 
government, and the government as acting under its right of 
eminent domain, subject, of course, to the duty to provide com- 
pensation, where that duty Is imposed by the constitution, and 
to that only.^ And In accordance with this doctrine It has been 
held In numerous cases that neither a State nor a person, natural 
or artificial, acting by Its authority under a law which the leg- 
islature is competent to make. Is answerable for consequential 
damages occasioned by the construction of a highway, to any 
greater extent than Is specially provided by the law itself.* 
And any inconvenience or damage suffered In consequence of 
the proper and reasonable repairs of a public highway by a 
plank-road corporation, in the legitimate exercise of the powers 
conferred by the statute, is damnum, absque injuria^ and no ac- 
tion lles.^ The protection is extended not merely to the imme- 
diate grantees of the franchise, or the Immediate agents of the 
government, but also the sub-agents or Inferior employees, who 


1 Bellenger v. Company, 23 N. Y. 42; Kavanagh v. City of Brooklyn, 38 
Barb. 232. 

< Bennett v. New Orleans, 14 La. An. 120. 
* Sedg. Meas. Dam. nil. 

^ Henry v. Company, 8 Watts & S. 85; Callender v. Marsh, 1 Pick. 418; Boston 
& B. M. D. Corporation v. Kewman, 12 Pick. 467; Boston &c. Company v. 
Boston &c Company, IG Pick. 512; S. C. 23 Pick. 3G0; King v. Company, 2 Bam. 
& Aid. 64G; Governor &c. v. Meredith, 4 T. B. 794; Sutton v. Clark, G Taunt. 29; 
Lansing t;. Smith, 8 Cowen, 14G; Wardens v. Donne, 3 Scott, 356; Bolton t;. Crow- 
ther, 4 Dowl. & B. 195; King v. Commissioners, 8 Bam. & C. 355; Queen v. Com- 
pany, 1 Crall. & D. 589; Lehigh Bridge Co. v. Lehigh Coal Sec. Company, 4 Bawle, 
9; Or«vesv. Otis, 2 Hill, 466; Jermaine v. Waggoner, 1 Hill, 279; 7 Hill, 357; 
Livingston v. Adams, 8 Cowen, 175; Steele v. President &c. 2 Johns. 283. 

< Benedict v. Goitt, 3 Barb. 459; Bord. v. Company, 2 Har. 314; Hollister v. 
Company, 9 Conn. 436; Hooker v. Company, 14 Conn. 146; Burroughs v. Com- 
pany, 15 Conn. 124; BadclifiTs Executors v. Mayor of Brooklyn, 4 Comst. 195; 
Hatch t;. Company, 25 Vt. 49. See, contra^ Baritan Co. r. Lee, 2 Zab. 243. 



are acting under the same general authority. The loss sustained 
in all such cases is damnum absqiie injuria^ In a case of great 
hardship in New York, where, in grading a street, the ground 
was cut down so as to injure an adjacent proprietor, but none 
of his land was actually taken, it was declared that the loss 
was damnum absque injuria ; that the constitution had made no 
mention of indirect or consequential damages; and although 
the proprietor had actually suffered injury, still it could not be 
said that property had been '* taken for public use " within the 
meaning of the constitution.^ 

§ 18. Consent to or acqoiescenoe in injnxiea — ^Acts of 
the sufferer. — ^That to which a person assents is not usually es- 
teemed in law an injury. Volenti non Jit injuria. It is a general 
rule that no one can maintain an action for injuries where he has 
consented to the act producing them.^ Such would, at common 
law, be the position of a man who consents to his wife's adul- 
tery.^ So, to make use of a somewhat dissimilar illustration, 
although the deck of a vessel is prima fade an improper place 
for the stowage of a cargo, yet when the loading on deck has 
taken place with the consent of the merchant, there is no rem- 
edy against the ship-owner or the master for the wrongful load- 
ing.^ So, if a person says generally " there are spring guns in 
this wood," and another is rash enough to go into the wood, he 
does so at his peril, and must take the consequences of his own 
act. No one, who is a trespasser upon premises, can impose 
upon the owner a duty to have them in safe condition, and 

1 Monongahela Bridge Co. v. Kirk, 46 Pa. 112; Clarke v. Company, 41 Pa. 147. 
See, contra^ Tinsman v. Belvidere Company, 2 Dutch. 148. 

3 Badcliffs Executors v. Mayor of Brooklyn, 4 Comst. 196. In reference to 
this decision, Mr. Sedgwick, (Meas. Damages, *112) remarks: *'It appears to me 
the decision is an unfortunate one, altliough sound, perhaps, on a strict constrno- 
tion of the constitutional clause. But it is to be regretted that the Court felt 
itself bound to apply a strict instead of a liberal interpretation. The tendency 
of our legislation, in matters of public improvement, is undoubtedly to sacrifice 
the individual to the community ; and wo cannot attach too much importance 
to those provisions of our fundamental law wiiich are framed to protect private 
property against encroachments, which, though sanctioned by legislative enact- 
raent, are, in truth, often dictated by private interests." 

8 Broom's Leg. Max. sec. 268; Atty-Gen. v. College, SO L. J. Ch. 769; Ooold r. 
Oliver, 4 B. & C. 142; Hudson o. Ayers, 1 £. & E. 148. 

^Duberley v. Gunning, 4 T. B. 657; Winter v. Henn. 4 C. & P. 496. 

« Gould V, Oliver, 2 Scott, N. R. 257. 


therefore, if one falls into .a pit dug into a field, which he is 
taking the liberty of crossing, it is the act of the injured party 
and he has no redress.' The maxim has frequently been ap- 
plied to voluntary payments of money when there was no legal 
or equitable requirement so to do, and moneys paid without pro- 
test, but in ignorance of the law, which cannot be recovered 

§ 19. The non^aowrctoe of powers by municipal corpo- 
rations. — ^The power which may be possessed by municipal cor- 
porations, to act through their agents in respect to any particu- 
lar matter, such as to provide sanitary regulations, and for the 
arrest of infectious diseases or of conflagrations, does not appear 
to make them liable for negligence in not exercising these pow- 
ers. The State law relating to cities constituted the mayor and 
council a board of health, with power to make ^^ regulations in 
relation to cleansing the streets, aUeys, and drains of the city or 
town ; in relation to communication with houses where there is 
any infectious disease ; to establish pest-houses or hospitals ; and 
when deemed expedient and necessary to prevent the spread of 
any contagious disease, to remove to said pest-house or hospital 
any person sick with the Asiatic or malignant cholera, or other 
malignant or infectious disease ; ^* the neglect to exercise such 
powers or make such regulations was held not to render the 
city liable for any losses resulting therefrom. An action was 
brought against the city for neglecting to take precautions to 
prevent the spread of small-pox, whereby the plaintiff was ex- ^ 
posed to the contagion and communicated the disease to his two 
children, who died thereof, and it was so held. The court 
said: ^^The principle which would hold the defendant liable 
for the negligent acts here complained of would compel a city 
to respond in damages for the neglect of its police to suppress a 
riot, the failure of its firemen to arrest a conflagration and the 
negligence of its physician in prescribing for a patient. It is 
impossible to conceive of the endless complications and embar- 
rassments which such a doctrine would involve and the extent 

^Graatret v. Egerton, L. R. 2 C. P. 371; Jordin r. Cramp, S Mees. & W. 787; 
Home V. Widlake, Yelv. 141; Barnes r. Ward, 9 Com. B. Sf2, 
- See Broom's L^. Max. *S72, and cases cited and reviewed. 


to which the public intereets would ^thereby suffer. It is safo 
to assume that if such were recognized as the law, no town 
would voluntarily assume corporate functions, and every indus- 
trial and commercial interest would become paralyzed. The 
true doctrine is that the powers conferred in the sections wc 
have been considering arc of a legislative and governmental 
nature, for a defective execution of which the city cannot be 
held liable. In discharging these legislative functions, the city 
acts as a quasi sovereignty, and is not responsible for a neglect 
or non-performance of its officers or agents." ^ 

And where a city ordinance provided for the opening of a 
street through the lands of two parties, and one of them obtained 
a temporary injunction restraining the same, but on a final hear- 
ing it was dissolved and the street was opened, and a suit was 
brought on the injunction bond by the other party, claiming 
damages thereon on account of a depreciation in the value of 
the land, and of loss by the delay in the opening of the street, 
caused by the injunction, and loss thereby of sales of lots there- 
on, which he might have made, it was held that he was deprived 
of no legal right by the injunction, none which the bond was 
intended to protect ; that he acquired no privilege or right to 
the use of the street and sustained no injury for which he could 
claim redress by an action on the bond.^ 

A statute, it is held, which requires the overseers of highways 
to repair and keep in order the highways within their road dis- 
tricts, does not impose an absolute duty so as to make the over- 
seers liable in a civil action for the non-performance. So far as 
the action for damages is concerned, if the public suffers, it 
seems to be damnum, absque injuria.^ 

§ 20. Publication of uncalled -for lettezB. — An action 
was brought by the publishers of a daily paper against the city 
postmaster, in which the plaintiffs claimed that they were the 
publishers of a paper having the largest circulation of any pub- 

^ Ogg V. City, 35 Iowa, 495. See Wheeler v. City, 19 Ohio St 19; Brinkmeyer 
r. City, 29 Ind. 187; Western College, &c. v. City, 12 Ohio St. 375; Smoot v. We- 
tumpka, 24 Ala. 112. 

3 Stewart r. Maryland, 20 Md. 97; Field on Damages, sec. 37. 

< Bartlett v. Crozie^ 17 John. 438: Garlinghouse v, Jacobs, 29 N. Y. 297. Bee. 
also, Wilson v. Halifax, L. R. 3 Ex. 114; Burnett v. New Orleans, 14 La. An. 120; 
Smoot V. Wetumpka, 24 Ala. 112; Soper v. Company, 26 Iowa. 2G4. 

§ 21 gen£;bal illustrations. 25 

lished in the citj, and that it was the duty of defendant, under 
an act of Congress, to advertise uncalled-for letters in their pa- 
per, and that the defendant had refused so to do ; whereby they 
had been deprived of profits which would otherwise have accrued 
to them therefrom. The defendant demurred, on the ground 
that it did not appear that the plaintiffs had any vested right in 
the advertising of the letters uncalled for in the post-office, nor 
that the duty on the part of the defendant to advertise the let- 
ters uncalled for at the post-office was a duty to the plaintiffs, 
or in the due performance of which the plaintiffs had any exclu- 
sive interest or right. The demurrer was Sustained. The court 
on appeal held that there was no foundation whatever for such 
an action ; that whenever an action is brought for a breach of 
duty, the party bringing it must show that he had an interest 
m the performance of the duty, and that the duty was imposed 
for his benefit ; that when the duty is imposed for the benefit of 
another, or for the public benefit, and his own advantage is 
merely incidental, and no part of the design of the statute, no 
such right is created as forms the subject of an action ; that the 
act of Congress providing for the advertising of uncalled-for let- 
ters was not passed to confer profitable employment upon pub- 
lishers, but to benefit persons likely to receive communications 
through the post-office ; that the statute secures to publishers no 
fixed and absolute right, and imposes on them no duty, and that 
they have no such interest as gives them a right of action under 
the statute.^ So in Iowa, the statute provided that the boards 
of supervisors of the several counties should select two newspa- ^ 
pers, having the largest circulation, in which to publish the pro- 
ceedings of the board, and the laws of the General Assembly of 
the State. It was held that the proprietor of a newspaper had 
no such private or personal interest in the publication of such 
laws and proceedings as that he could in his own name maintain 
an action to compel the board by mandamus to order the publi- 
cation in his paper.' 

§ 2L Iitfringeinent of patentee — When the means em- 
ployed in a machine of later date are different not merely in 

1 Strong V, Campbell, 11 Barb. 135. 
• « Welch V, Board &c. 23 Iowa, 109; Smith v. Yoram, 37 Iowa, 89. 


form, but in substance, and consist in combinations differing in 
substance, there is no infringement of a patent, though the ob- 
ject be to produce the same result. A defendant constructs a 
machine for obtaining a current of air between the grinding sur- 
faces of millstones, hj means of a rotating vane, for effecting 
which the plaintiff also has a machine, protected bj patent. 
The plan of the defendant is to remove from the center of both 
stones a large circular portion, and in this space, opposite the 
opening between the two stones, to place a fan, by the rapid ro- 
tation of which a centrifugal motion is given to the air, driving 
it between the stones! The plan of the plaintiff consists of a 
portable ventilating machine, blowing by a screw vane, which 
causes a current of air parallel to the axis of the vane, being at- 
tached externally to the eye of the upper millstone; and the 
screw vane being thus set in rapid motion, the air is forced 
through the eye into the center of the stones, and bO finds its 
way out again. The defendant's machine is not an infringe- 
ment of the plaintiff's patent.^ An unauthorized sale of a pat- 
ented machine must be a sale of the complete machine. The 
«ale of the materials or portions of it is not enough.^ The sale 
or use of the product of a patented machine is no violation of 
the exclusive right to use, construct, or sell the machine itself ; 
and the patent for a discovery of a new and improved process, 
by which a new process or manufacture before known in com- 
merce may be made in a better and cheaper manner, grants 
nothing but the exclusive right to use the process.' 

§ 22. Escape of dangerous elements or snbstanceB. — 

If the damage occasioned by the escape of dangerous elements 
or substances be produced by vis majoTj or by the act of God, 
or without the intervention of acts of the occupant or his 
agents, the defendant is not liable, though he may have brought 
the dangerous element or substance upon his premises. To il- 
lustrate the first part of the proposition, if damage by flooding 
is caused by lightning bursting a well-constructed reservoir, 
there can be no liability. To illustrate the non-liability for acts 
without the intervention of the occupants, the defendant's ten- 

I Bovill V. Pimm, 11 Ex. 718. ^ Sawln v. Guild, 1 Qall. 485. 

•Goodyoar V. Bailroad, 2 WalL C. C. 366. 


ants, the plaintiffs, occupied the lower story of a warehouse, of 
which the defendant occupied the upper. A hole had been 
gnawed by rats through a box into which water from the gut- 
ters of the building was collected, to be thence discharged by a 
pipe into the drains. The water pouring through the hole ran 
down and wet the plaintiff's goods. The defendant was held 
not liable.^ So also, if the bringing of the dangerous element. 
upon the occupant's land, and all the works. connected therewith 
be under legislative sanction, the resulting damage by natural 
escape or by authorized channels, and not by reason of negli- 
gence attributable to the occupant, will perhaps not render the 
occupant liable, at all events not if the escape be caused by 
vis major. As, if one be charged by law with the duty of 
maintaining water tanks for purposes of irrigation for the pub- 
lic welfare, and by reason of an extraordinary flood, and not of 
the bad condition of the tank, it gives way, causing damage to 
the plaintiff, he cannot recover.^ 

1 Gantaiist;. Taylor, L. B. 6 Ex. 217; Ross v. Fedden, L. R. 7 Q. B. 661. See 
Donpe V. Geoin, 45 N. Y. 119; Wilson v. Kewbeny, L. B. 7 Q. B. 31. But see 
Marshall v. Cohen, 44 Ga. 489. 

9>Iadras By. Co. r. The Zemindar, L. It. Ind. App. 364. 




§ 23. General plan. 

§ 24. Personal injuries. 

§ 25. Injuries by infants and non-compotes. 

§ 26. Injuries resulting in death. 

$ 27. Assault. 

§ 28. Assaults in self-defense, etc. 

§ 29. Defense of relatives, friends, etc. 

§ 80. Moderate correction by parents, etc 

§ 31. Injuries to licensees. 

§ 32. Injuries to workmen. 

$ 33. Injuries to trespassers. 

S 31 Injuries inflicted by masters of ships upon their crew. 

$ 35. Injuries from animals. 

§ 36. Seduction. 

§ 37. Criminal conversation. 

§ 38. Connivance of the plaintiff. 

$ 39. Infidelity of the husband— Neglect of wife. 

§ 23. General plan. — ^It will be our purpose to consider the 
subject of Damnum Absque Injuria as follows : It is true, as a 
general proposition, that a person has a right to be secure in 
his life, his person, his liberty, health, reputation, and property, 
real and personal ; and further, that for a violation of this secu- 
rity, for an injury to any of these things, he can recover some 
6oi*t of damages. We shall consider the cases of injury to 
these things in their order where no damage can be recovered — 
where the law imputes no wrong and therefore gives no redress. 
The subject of injuries to real and personal property will in- 
clude chapters or injuries to the holders and ovmers of stocks 
and shares in incorporated companies, coming under the general 
head of conversion of personal property; and the subject of 
injuries to real property will include a chapter on injuries from 
mining operations, and a chapter on injuries to subterranean 
and surface streams and percolating waters. This will be fol- 
lowed by a consideration of subjects which it will be found con- 
venient to consider separately, such as injuries arising from the 



nonfeasance, misfeasance, and malfeasance of public officers, 
and the subject of injuries arising from negligence. 

§ 24. Personal injuries. — ^In actions for damages for per- 
sonal injuries, such as for assault, battery, etc., certain facts 
constitute a complete defense, and the injury, if any there be, 
may be said to be damnum absque injuria. Such are cases 
where the injury was done in self-defense, where it was done to 
prevent a breach of the peace, suppress a riot, or to prevent the 
commission of a felony; where it was done in the reasonable 
defense of one's house, lands, or goods ; where it was done nec- 
essarily in the execution of legal procesis ; where it was done in 
the reasonable defense of one's wife, husband, parent, child, 
master, or servant. But if the defendant uses more force or 
inflicts more injury than is necessary, he is liable for the injury 
in excess of what was required for the purpose. No more force 
is to be used than is necessary to prevent the violence impend- 
ing, nor is any force to be applied in defense of the possession 
of property until the trespasser has been warned to desist, or 
requested to depart, except in the case of a violent entry or 
taking by a trespasser, for otherwise the party interfering to 
prevent the wrong may himself be guilty of an assault.^ In- 
evitable accident or casualties occurring without any fault have 
generally been held an excuse for an injury resulting in loss, 
whether the party through which it occurred was an adult, and 
of sound mind, or an infant, or a person of unsound mind.^ 

§ 25l Injuries by infants and noncompetes. — Ground 
has been taken against the liability of lunatics and insane persons 
for their torts. The argument is that torts are of two classes — 
intentional and willful injuries to the person, property, or char- 
acter of another, or those arising from want of care. Willful 
or intentional wrong can only exist where there is a mind to acL 
Without such mind no intent can be formed. Hence in slander 
and libel no action will lie against a |)erson who is insane.^ 

^ Greenleaf on Evidencei sec. 05; Field on Damages, seo. 616. 

« ParroU v. Wells, 15 Wall. 224; Dixon v. Bell, 5 ^L & S. 198; Bro%vn t?. Collins, 
53 K. H. 442; Bissell r. Baker, 19 Ark. 308. 

* Bryant v, Jackson, 6 Humph. 199; Yates r. Reed. 4 Blackf . 463; Dickinson r. 
Barber, 9 Mass. 225; City v. Vanacker, Garth. 483; Townshend, Slander and Libel, 




Coke said a madman is only punished by his madness. Sedg- 
wick, in his work on damages, says : ^ *^ In case of the compos 
mentis^ although the intent be not decisive, still the act punished 
is that of a party competent to foresee and guard against the 
consequences of his conduct, and inevitable accident ha:^ always 
been held an excuse. In case of the lunatic it may be urged, 
both that no good policy requires the interposition of the law, 
and that the act belongs to the class of cases which may be 
termed inevitable accidents." A person who is clearly insane, 
or an idiot, or a child of very tender years, it is argued, is not a 
cause of injury, but a condition. He belongs to those natural 
forces which, like weapons of wood, stone, or iron, are incapable 
of moral choice, but act only as they are employed or impelled. 
They cannot be a judicial cause, but may be used in producing 
an effect when controlled or made to act by another.^ In Rail- 
road V. Gladman, 15 Wall. 401, the lower court charged the jury 
relative to the contributory negligence of a child as follows: 
" You have got to adopt one of two rules here : either to judge this 
child's conduct under the measure of his years and the measure 
of his discretion, or pronounce that no action lies in behalf of a 
child, or demand of the child a measure of judgment that nature 
has not given him, which would be a greater outrage on good 
logic than to pronounce he had no remedy. • • • The 
degree of accountability varies with the age and capacity of 
individuals, until you get to a point where he or she is utterly 
disqualified from protecting him or herself.*' The judgment for 
the plaintiff was affirmed. In Lynch v. Nurdin, 1 Ad. & E. N. 
S. 29, the child was a direct trespasser, yet recovered for negli- 
gence of the owner of the cart, left standing in the street with 
the horse unhitched. The child got into the cart, and the horse 
ran away and injured the child.^ In an Illinois case the court 
say we cannot impute negligence to a child of such tender 
years, (not quite five years old) and especially to one of less 

1 6th ed. p. 555; Harj. p. 465, 456. 

s South L. Bev. N. S. 346, vol. 1. See Whart. on Negligence, sees. 87, 88, 30 J, 
a07, 309, 310; Bartonshill Coal Company v. Reed,3 Macq. 266; Bartonahill Coal 
Com]>any v. McOuire, 3 Macq. 300; Chicago & Alton R. B. v. Gregory, 58 111. 225; 
Grizzle v. Frost, 3 Fost. & F. 622; Coombs v. New Bedford Cordage Co. 102 Mass. 
572. See, also, Biige t'. Gardner, 10 Conn. 507: Daley r. B. B. Co. 26 Conn. 59; 
B. B. Co. V. Stout, 17 Wall. 657. 

• Chicago B. B. r. Gregory. 58 III ^i. 


than ordinary capacity. There are also other cases which seem 
to hold that the child may recover against one who has negli- 
gently injured it, and the negligence of parents or guardians is 
not imputable to it where the action is by the child ; otherwise, 
where the parent sues for loss of service.* The theory of these 
cases would appear to be that the child is required to exercise 
what capacity it has to avoid danger, which would be that ordi- 
narily exercised by children of its age. But if the child pos- 
sesses less capacity, it may bo shown ; but the defendant, unless 
he has knowledge of the mental defect, would have a right to 
treat it as possessing ordinary apparent capacity.^ It is further 
argued that all liability for torts rests upon the basis that the 
party charged has done a wrongful or culpable act, either inten- 
tional wrong, or the failure of himself or agent to use ordinary 
care. Ordinary care is measured by the intellect the actor pos- 
sesses, or is presumed to possess. The person who is Tvon com- 
pos mentis should not be made civilly responsible for failure to 
exefcise a power he docs not possess. The great principle on 
which all law rests is that it commands that which is right, and 
forbids that which is wrong. This presupposes a knowledge of 
right and wrong. The law does not require impossible things. 
Insanity is an act of God. Why should the estate of the mad- 
man be chargeable for acts he cannot prevent ? The act of God 
is always an excuse. Such are the consequences of tempest and 
earthquake.^ But, on the other hand, it is said, with equal 
positiveness, that infants and lunatics are liable for all actual 
damages for injuries inflicted, to the same extent as adults and 
those of sound mind. It has been considered a matter of ob- 
vious justice that, where one person, however innocent, causes 
an injury and loss to another, without any fault of the in- 
jured party, the former should be held to indemnify the latter 
for the loss sustained.^ And so it has been said that infants 

1 Xorth Pacific XL R. v. Hahoney, 31 Pa. 187; City ». Ruby, 8 Minn. 169; CalnU 
V, Eastman, 18 Mtnn. «K24; Bronson v. Soathberry, 57 Conn. 199; Bolano v. R. R. 
36 Mo. 400; Robinson v. Cone, 22 Vt. 213; Belfontaine R. R. r. Snyder, 18 Ohio 
St 399. 

sSchierbold v, K. B. & M. R. R. Co. 40 Cal. 447; IlL Cent. R. R. Co. v. Buclc- 

siSoath. IxR.K. S. 346. 

^Hatfield t7. Roper, 21 AVend. G15; Morse o. Crawfoid, 17 Vt. 499; Williamri v, 
Cameron, 26 Barb. 172; Bumard o. Hagsis, 14 Com. B. N. S. 4o; 32 Law J. Coin. 


and persons of unsound mind are liable for injuries caused by 
their tortious negligence, and so far as their responsibility is 
concerned, they are held to the same degree of care and dili- 
gence as persons of sound mind and of full age. This is neces- 
sary, because, otherwise, there would be no redress for injuries 
committed by such persons, and the anomaly might be witnessed 
of a child having abundant wealth depriving another of his 
property without compensation. And it is further said that such 
persons are held civilly for trespasses and torts, as the actionable 
qualities of such acts do not depend upon intention.^ In the 
class of cases first adverted to, a wrong done by such persons as 
we have been considering may be said to partake of the nature 
of damnura absque injuria* According to the other authorities, 
it does not, and the law affords the remedy.^ 

§ 26. Injuries resulting in death. — At common law, no 
action could be maintained for an injury resulting in the death 
of a person, or for losses sustained to others by the death. This 
was a rather startling instance of damnum absque injuria. Lord 
Ellenborough once remarked, that ^^ the death of a human being 
cannot be complained of as an injury."^ And in an Iowa case 
it was said, that '^at common law, if one person assaulted and 
beat another, the person assaulted and beaten might have his 
action and recover damages therefor ; but if the beating was so 

P. 189; "Weaver r. Ward, Hob. 134; Penrose v. Curren, 3 Kawle, 351; Bessej ©. 
OUiott, T. Baym. 467; Sutton v, Clark, 6 Tannt. 44; Philliter v. Phippard, U 
Ad. & El. N. S. 347; Bullock v, Babcock, 3 Wend. 391; Conklin v. Thompson, 29 
Barb. 218. 

1 Behrens v. McKinzie, 23 Iowa, 343, per Dillon, J. ; Morse t>. Crawford, 17 VU 
490; Shearman & Redf. on Neg. sec. 557; Bush v. Pettibone, 4 Comst. 300. 

^ By the French law, as the principle of responsibility, civil as well as crimi* 
nal, implies a fault imputable to the doer of the harmful act, the insane and 
minors under the age of discernment are freed from all responsibility, civU aa 
well as criminal. This is considered no injustice. Although the one who causes 
the damage is rich, he is not obliged to indemnify the sufferer, who may ba 
poor; for it is a case of accident, as much as if a tile should fall from a roof and 
kill a person beneath. Drunkenness, voluntarily produced, is, however, no ex- 
cuse for a wrong. (See article on '* Torts under the French Law,'* in 8 Am. Law 
Be view, April, 1874; and a French treatise entitled Traits GAi^al de la i2e<poi»- 
sahllitiou de I * Action en Dommages—inUrets en dehores de» contracts. Par M. A. 
Sourdat, Docteur en Droit, Conseiller ti la Cour d'Appel d' Amiens, 1872.) 

3 Baker v. Bolton, 1 Camp. 403. See, also. Carry v. Company, 1 Cush. 475; 
Hyatt V. Adams, IG Mich. ISO; Edon v. Lexington B. B. Co. 14 B. Mon. 204; 1 
IlilliaKl on Torts, 83. 


severe as to produce death, then the wrong-doer was exempt 
from liability to damages in a civil action.'' ^ Dillon, J., has 
attacked the doctrine with great severity, as unsustained by 
reason and incapable of vindication. He maintains that the 
doctrine is not deeply rooted in the common law, and ought not 
to be followed in a state where the subject is entirely open for 
settlement. He further remarks, that " it would be different if 
the rule had been settled in England by a long course of decis- 
ions made prior to the settlement of this country, as in that event 
the courts here would find it less difficult to receive it."^ But 
in England, and in nearly all of the United States, it is provided 
by statute that an action may be maintained by the personal 
representatives of the deceased, for the benefit of the widow 
and next of kin, or for the benefit of the estate of the deceased, 
for damages resulting from death caused by the wrongful act 
of another. The English statute, 9 and 10 Vict. chap. 93, sees. 
1, 2, (1846) known as Lord Campbell's Act, was the one from 
which nearly all the later statutes have been substantially copied. 
Prior to that statute, a plaintiff declared that the defendant as- 
saulted and beat the former's wife, and thus injured her so that 
she subsequently died, and the court held that, as in the case of 
a person who beats another's servant so that he dies of the bat- 
tery, the master shall not have an action against the offender 
for the battery and loss of service, because the servant, dying 
of the extremity of the battery, it has become a public offense ; 
and, being converted into a felony, that drowns the particular 
offense and private wrong offered to the master before, and his 
action is thereby lost.^ The doctrine in Massachusetts and 
Kentucky has been extended, in the absence of statute, to deaths 
from the negligence of railroad companies,^ where the deaths 

^ Shearman v. Western Stage Co. 24 Iowa, 543; Ford v. Monroe, 20 Wend. 210; 
Boston &c. V, Dana, 1 Gray, 83; Drew v. Company, 26 N. T. 49; Donaldson v 
Company, IS Iowa, 280. 

* Sullivan t7. Company, U. S. C. Ct. Neb. 1874; 1 Cent. L. J. 595, 614, 622; Jones 
V. Perry, 2 Esp. 482; Cross v. Guthray, 2 Root, 90; 2 Cent. L. J. 12, 4(7, 117, 165, 

s Hlgycins v. Batcher, Yel. 89; Koy, 18; Smith v. Sykes, Freem. 224. But see 
White V. Spettigae, 13 Mees & W. 603. See Baker v. Bolton, 1 Camp. 493; 
Shields o. Yonge, 15 Ga. 349; Hyatt v, Adams, 16 Mich. 180; Kickerson v. Har- 
riman, 38 Me. 277. 

* Skinner v. Housatonic By. Corp. 1 Cush. 475. See Osbom v. Gillett, Law R. 
8 Ex. S8; Eden v. Company, 14 B. Mon. 204. 

D. A. I.— 8. 


were immediate. In most of the States, and in England, the 
rule is, as we have said, now altered by statute.^ 

These statutes have no extra-territorial operation, and do not 
apply where the suit is brought in one State for an injury done 
in another State, or in a foreign country, or on the high seas; 
and no recovery can be had in such cases, unless it is alleged 
and proved that the law of the place where the tort was com- 
mitted is the same in this respect as the law of the forum.^ 

In general, the principles relating to mutual or contributory 
negligence are applicable to actions for injuries resulting in 
death ; so that no action can be maintained where the negligence 
of the party injured or killed materially contributes to the in- 
jury or death ; * or where the death occurs in consequence of 
the negligence of a fellow-servant while engaged in the same 

§ 27. Assault. — Acts which may embarrass and distress do 
not necessarily amount to an assault. Indignities may not con- 
stitute an assault. Acts aggravating an assault differ materially 
from the assault thereby aggravated. Insulting language or 
conduct may aggravate an assault, but it is not an assault. So 
the acts of a defendant in taking out the windows of his own 
house, in a bleak and cold day, might distress one unlawfully 
occupying and illegally refusing to quit his premises, but they 
can in no sense be regarded as an assault. One may be embar- 

J See Green v. Hudson River R. R. Co. 2 Keyes, 294. The theory was, to some 
extent, based upon the maxim actio personalis fTwritur cum persona ; and alao, 
upon the principle that, in the case of immediate deaths, "there was no time, 
during the life of the injured party, when it could be said that others had lost 
any services by reason of the act complained of." Worley v. R. R. 1 Handy, 481. 
See, also, Conn. Co. v. N. Y. Co. 25 Conn. 271; Campbell v, Rogers, 2 Handy, 110; 
Hubgh. V. Company, 6 La. An. 496; Kearney v. Company, 9 Cush. 109; Hollen- 
beck t'. Company, 9 Cush. 480; Quin v. Moore, 15 K. Y. 436; Wyatt v. Williams, 
43 N. H. 105; Pack i7. Mayor, 3 N. Y 489; Palfrey v. Company, 4 Allen, 56. See, 
contra, Whitford v. Company, 23 N. Y. 475 ; Plummer v, Webb, Ware, 78 ; Mercer 
V. Jackson, 54 111. 397; Lynch v. Davis, 12 How. Pr. 324. 

2 Whitford t;. Company, 23 N. Y. 465; Maher v. Norwich Company, 45 Barb. 
226; Selma Company v. Lacy, 43 Ga. 461; Nashville Company r. Elkin, 6Cold. 

» Willetts V. Company, 14 Barb. 585; Pennsylvania Company v. Ogier, 35 Pa. 
60; North Pa. R. Company r. Robinson, 44 La. 175; Tucker v. Chaplin, 2 Car. & 
K. 730. 

* Hutchinson r. Company, 5 Ex. 343; Wigmore i'. Jay, 5 Ex. 354; Field on 
Damages, chap. 10, sees. 185, 650. 


rassed and distressed by acts done in a wanton, willful, angry, 
or . insulting manner, where there is no intention or existing 
ability to do violence to the person, and yet there may be no 
assault.^ Such ah injury regarded^in view of the law as to 
assaults is damnum absque injuria. 

So, in an action for trespass by a husband and wife, who were 
tenants, the writ contained three counts : one for breaking and 
entering the plaintiffs' close, and carrying away the household 
furniture ; the second for taking and carrying away the house- 
hold furniture of the wife, and the third for assault on the wife. 
In reference to the last count .there was evidence tending to 
show that after entry and notice to leave, and refusal by the 
wife and her mother, with an expressed determination on their 
part to hold possession against the defendant, the latter called 
in assistants and ordered them to remove the furniture, and 
they did remove it from some of the rooms ; that upon going to 
one of the rooms the door was fastened and the assistants opened 
it ; that the furniture, except the bed, was removed from the 
wife's sleeping apartment ; that the assistants remained there 
for some days and nights ; that the defendant caused the win- 
dows to be removed, prevented food from being carried to the 
house, let a tenant into the L of the house, who had charge of 
the defendant's blood-hound, and permitted him to go into the 
house ; that the furniture was removed into a house near by and 
the wife notified of its whereabouts ; that the doors fastened by 
the wife were removed, and that she finally left by compulsion 
with an oflicer, and was ^ck several weeks. The following in- 
structions were given by the lower court : " Was there a tres- 
pass committed upon the female plaintiff? She is the only one 
who seeks for damages. Whatever may have been the injury 
inflicted upon the other inmates of that house, she can recover 
on this suit only for that which was inflicted upon her. In order 
to constitute an assault it is not necessary that the person should 
be touched, but there should be certain indignities. In the lan- 
guage of one of the decisions, if the plaintiff was embarrassed 
and distressed by the acts of the defendant, it would amount in 
law to an assault." But this instruction was held by the Su- 
preme Court of Maine to be equally at variance with the com- 

^ Stearns r. Sanipson, 59 Me. 568. See, also, Meader r. Stone, 7 Met. 147. 


mon law and the statute of the State.^ The removal of the door 
or windows of the owner in possession was held not to constitute 
an assault. '' Indeed," said the court, ^^ as has been seen, (6 
Allen, 76) the owner would, in attempting it, nave the right to 
use as much force as was necessary to overcome the resistance 
of the unlawfully resisting and trespassing tenant." ^ 

A defendant was riding his horse in the street, when the 
plaintiff ran from the pavement and seized the bridle. The 
defendant told him to '*' loose hold," and on his not doing so, 
struck him on the face and head with his riding whip, bringing 
blood. The plaintiff still retained his hold. The defendant was 
considered justified in endeavoring to obtain his release, using: 
no more violence than was necessary for that purpose, and the 
most natural way of doing so, said the court, was by striking at 
the person detaining him. ^'That he used no more violence 
than was necessary for the purpose of extricating himself, ap- 
pears from the fact that with all that he used he did not succeed 
in doing so." * 

A declaration set forth that the defendants assaulted and beat, 
and pushed about the plaintiff and took from him certain goods, 
but the substance of the justification was that the plaintiff, hav- 
ing the goods wrongfully in his possession, they belonging to 
the defendants, and being about to carry them away, the de- 
fendants requested him to refrain, and on his refusal, moUiter 
manus imposuit^ and used no more force than was necessary to 
take the goods from him. The court decided that if the 
defendant was the owner of the chattel >«md entitled to the pos- 
session of it, and the plaintiff wrongfully detained it from him 
after request, the defendant in law would have the possession, 
and the plaintiff's wrongful detention against the request of the 
defendant would be no possession, but would be the same viola- 
tion of the right of property as the taking of the chattel out of 
the actual possession of the owner. Both as to land and chattels 
it was considered that the owner may wrest the possession from 
a wrong-doer and trespasser.* 

^ Rev. Stat. Me. chap. 118, sec. 28. 

3 Cases cited supra. 

« Rowe V. Hawkins, 1 Fost. & F. 91. 

4 Blades v. Higgs, 30 Law J. Com. P. 347; 12 Com. B. N. S. 603; Baldwin v. 
Hayden, 6 Conn. 453; Oyre v. Culver, 47 Barb. 592; Hodgeden v. Hubbard, 18 


§ 2& Assaults in self-defense, etc. — ^If an assault is in 
self-defense, and the plaintiff was the aggressor, or if one strikes 
another, and the person struck, in the heat of anger, and on the 
impulse of the moment, returns the blow with a stick or blud- 
geon, an action cannot be maintained by the aggressor ; ^ but 
unnecessary blows after the danger is past, and inflicted by way 
of revenge, are not excused by a first attack. It is common law 
that an assault and battery may also be justified in defense of 
property, real or personal, by the person entitled to the posses- 
sion or use. If one enters the house of another with force and 
violence, the party rightfully in possession may turn him out 
without previously requesting him to depart ; but if he entered 
quietly, a previous request is necessary to justify violence. As 
much force as may be necessary may be used.^ A policeman 
may, also, by authority of the master of the house, turn out an 
intruder, although not compelled so to do.^ A landlord may 
eject disorderly guests, using no more than necessary violence.^ 
Under the same restriction, a person witnessing an affray may 
lay hands on the combatants for the purpose of stopping it, and 
preserving the peace.'^ When a person is assaulted in such a 
way as to endanger his life, he is justified in maiming and 
w^ounding the attacking party ; but there must be some reason- 
able proportion between the attack and the retaliation. It seems 
that if A should merely strike B a slight and not dangerous 
blow, B would not be justified in cutting off A's hand ; but may- 
hem may be justified where it is inflicted after several blows 
have been struck, and the parties are engaged in close conflict.^ 

Vt. 904. See, contra, Andre v. Johnson, 6 Blackf. 375; Davis v. Whitridfl^e, 2 
Strob. 232; Barnes t;. Martin, 15 Wis. 240. 

I Oakes r. Wood, 3 Mees. & W. 150; Regina v. Driscoll, Car. & M. 214; Dole v. 
Srskine, 36 N. H. 503; Adams v. Waggonel, 33 Ind. 531; Fisher v. Bridges, 4 
Blatchf. 518; PhUbrick t;. Foster, 4 Ind. 442; Cockroft v. Smith, 11 Mod. 43. 

< Jackson v. Ooortenay, 8 El. & B. 8; 27 Law J. Q. B. 37; Harrington v. People, 
6 Barb. 607; Weaver v. Bmsh, 8 T. R. 78; Roberts i;. Taylor, 1 Com. B. 147; Scrib- 
ner t;. Beach, 4 Denio, 448; Timothy t*. Simpson, 6 Car. & P. 500; M'llvoy v. 
Cockran, 2 Marsh. 274; Robinson v. Hawkins, 4 Mon. 136. 

» Wheeler r. Whiting, 9 Car. & P. 265. 

« Howell V. Jackson, 6 Car. & P. 725; Webster v. Watts, 11 Q. B. 311; 17 Law 
J. Q B. 73; Hannah v. Bust, 21 Wend. 149. 

* Timothy o. Simpson, mpra, 

* Cook V. Beal, 1 lA. Raym. 177; 3 Salk. 115; Cockroft v. Smith, 2 Salk. 642; 11 
Mod. 43; Gregory v. Hill, 8 T. R. 299; Oakes v. Wood, 2 Mees. & W. 791. See 
Collins r. Renison, Say. 138. 


§ 29. Defense of relatives, friends, etc. — If an assault 
was committed in defense of neighbors and friends, the defend- 
ant may justify under a plea that the plaintiff first made the 
assault on the child, relative, wife, husband, servant, neighbor, 
or friend of the defendant, and was continuing the assault, 
whereupon the defendant laid his hands on the plaintiff to 
defend, etc., and prevent further assault, etc.^ 

§ 30. Moderate correction by parents, etc. — Children 
under age are subject to reasonable and moderate correction by 
parents, masters, and school-teachers.^ Masters of ships may 
also inflict necessary punishment on their crew. A plea that 
the defendant at the time of the assault was the captain of a 
merchant vessel, and the plaintiff was a mariner on board of 
her, serving under defendant's orders — that the plaintiff con- 
ducted himself in a mutinous and disorderly manner, and re- 
fused to obey the lawful and necessary commands of the defend- 
ant, whereupon the defendant caused the plaintiff to be moder- 
ately and properly corrected and flogged, has been held a good 
plea in justification.^ 

§ 31. Injuries to licensees. — In the case of licensees, if 
the injury arise by reason of a defective condition of the occu- 
pant's premises, it is necessary, to the latter's liability to the 
licensee, that the occupant had notice of the defect before the 
damage was sustained.* ^ defendant was proprietor of a hotel 
containing in one of the passage-ways a glass door, the glass in 
which had become gradually loosened and insecure; but the de- 
fendant was not aware of the fact, nor was he in fault for not 
knowing it. The glass fell out as the plaintiff opened the door, 
and the plaintiff, a visitor merely, was injured. The defendant 
was held not liable.^ In the case of a customer, if he is injured 

1 Leward v. Basely, 1 Ld. Kaym. 62; 1 Salk. 407; 3 Salk. 46. See Hill v. Rogers. 
2 Clarke, 67. 

2 Winterburn v. Brooks, 2 Car. & K. 16; Penn v. Ward, 2 Cromp. M. & R. 338; 
Fitzgerald r. Korthcote, 4 Fost. & F. 656. See Cooper v. McJunkin, 4 Ind. 290. 

8 Lamb v. Burnett, 1 Cromp. & J. 296. See Brown v. Howard, 14 Johns. 119; 
Sampson v. Smith, 15 Mass. 365. But see Mathews v. Terry, 10 Conn. 455. So 
with disorderly passengers— Aid worth v. Stewart, 4 Fost. & F. 957. 

* Welfare v. Company, Law R. 4 Q. B. 693 ; Southcote r. Stanley, 1 Hurl. & 
N. 247. 

• Southcote V, Stanley, supra. 


by reason of the bad condition of a portion of the premises not 
open to the public, and no invitation or inducement has been 
held out to him by the owner or occupant to go there, he can- 
not recover for injury sustained there, though the place be fre- 
quented by the servants of the occupant.^ 

§ 32. Injuries to workmen — Liability of employers. — 

The general rule as to the liability of employers is as follows : 
A servant by entering into his master's service assumes all the 
neks of that service which the master cannot control, including 
those arising from the negligence of his fellow-servants. In case 
of an injury to one servant by the negligence of another, it is 
immaterial whether he who causes and he who sustains the in- 
jury are or not engaged in the same or similar labor, or in posi- 
tions of equal grade or authority. If they are acting together 
under one master in carrying out a common object, they are 
fellow-servants. The master is bound to use ordinarv care in 
providing suitable structures, engines, tools, and apparatus, and 
in selecting proper servants, and is liable to other servants in 
the same employment if they are injured by his own neglect of 
duty. But it makes no difference whether the master is an indi- 
vidual or a corporation ; in either case, he is responsible to his 
servants for his own negligence, but not for that of their fellow- 
servants.^ The negligence of the latter is as against the master 
at the suit of his servant, damnum absque injuria, 

iTolbisch r. TarbeU, 10 Allen, 385. 

^GUman t;. Eastern B. B. Co. 10 Allen, (Mass.) 233; Caldwell v. Brown, 63 
Penn. St. 453; Hall v. Johnson, 34 Law J. Ex. 222; Smith on Master and Serv- 
ant, 134; Morgan v. Co. 35 Law J. Q, B. 23. See, also, Kielly v. Belcher Silver 
Mining Co. 3 Sawy. C. C. 500; Knaresborough v. Belcher M. Co. Ibid. 446. 

The damages to be recovered in case of death by negligence are the pecuniary 
loss sustained by the parties entitled to maintain the action. (Penn. P. B. Co. 
V. Zebe, 9 Casey, 330; Same v. Vandever, 12 Casey, 298; Same v. Henderson, 51 
Penn. St. 315; Caldwell v. Brown, 53 Penn. St. 315.) See, generally, Copp v. 
Newark & N. Y. B. B. Co. 6 Vroom, N. J. 17 ; Solomon v. Vintners' Co. 7 Amer. 
Law Beg. 622. 

In an action against an iron company by one of its workmen, employed in 
blasting, for an injury occasioned by the premature discharge of a blast loaded 
with a newly -invented powder, it appeared that the company furnished the 
powder for use in its ordinary and appropriate business; that its superintendent 
directed its use by the plaintiff in such business; that it had never been tested 
as an explosive in blasting, and was, in fact, unfit and unsafe for such use, and' 
that the plaintiff was ignorant of its dangerous properties. These things were 


In California, under the codes, an employer is not bound to 
indemnify his employee for losses suffered by the latter in con- 
sequence of the ordinary risk of the business in which he is em- 
ployed, nor in consequence of the negligence of another person 
employed by the same employer in the same general business, 
unless he has neglected to use ordinary care in the selection of the 
culpable employee.^ To such cases the rule of respondeat super- 
ior does not apply, unless there has been want of ordinary care 
upon the part of defendant in the selection of the culpable em- 
ployee. The code recognizes no distinction growing out of the 
grades of employment of the respective employees, nor does it give 
any effect to the circumstance that the fellow-servant, through 
whose negligence the injury came, was the superior of the plaintiff 
in the general service in which they were in common engaged. 

So wh^rc a plaintiff was in the hydraulic department of a 
general mining business, and a foreman of the defendant com- 
pany was engaged in blasting, and the finding was that the fore- 
man was a skillful, competent, and proper person to perform the 
duties with which he was charged, the company was held not 
liable to the plaintiff for injuries caused by blasting.^ 

§ 33. Injuries to trespassexB on premiBOS. — It is no 

ground of recovery, that a man's premises were in a danger- 
ous state of disorder, whatever the consequences to the tres- 
passer. But the defendant has no right, even against a tres- 
passer, to bring dangerous animals or engines upon his land, 
unless properly secured.^ Still, if the trespasser had actual or 
constructive notice of the presence of the dangerous thing, or 
perhaps, if he enters in the night, or even daytime, w^ith a felo- 
nious intent, he would not be entitled to recover.* And if it 
were customary to keep a savage dog upon the premises, a per- 
son entering, not feloniously, but without permit, might be 
deemed to have notice.^ 

held to constitnte a cause of action. (Spelman v. Fisher Iron Co. 56 Barb. 151. 
See Wright v, N. Y. Central R. R. Co. 25 N. Y. 562.) 

1 Civ. Code Cal. sec. 1970. 

s McLean t;. Blue Point Gravel Mining Co. 51 Cal. 255. 

• Loomifl V. Terry, 17 Wend. 496; May v. Burdett, 9 Q. B. 101; Woolf 17. 
Chalker, 31 Conn. 121. 

* Bird v. Holbrook, 4 Bing. 628. 
^Ilott V. Wilkes, 3 Bam. & Aid. SOS. 


§ 34. Injuries inflicted by masters of ships npon their 
crews. — ^The right of the master to use force and personal vio- 
lence to quell an insurrection, or to exact obedience to orders 
or to regular duty, can never be questioned. Without such 
power every crew would be in a state of anarchy, and the lives 
and property of all concerned in continual jeopardy. In sub- 
duing an insurrection or mutiny, any force requisite may be 
used, and any weapon which the occasion may require, because 
in such case the master acts on the defensive, and is bound by 
his duty, at all hazards, to reduce the crew to order and disci- 
pline. Where the offense is of a nature to require punishment, 
but not immediate violence, it is not only lawful but may be ex- 
pedient to postpone the punishment, and then, if corporal punish- 
ment is deemed proper, no deadly weapon should be used. For 
the very circumstance that the master has the power to punish, 
shows that neither he nor the vessel is in immediate danger ; 
and therefore care should be taken to avoid such blows as may 
put the life of the offender at hazard. Confinement, even in 
irons, may sometimes b'e resorted to as the best mode of pun- 
ishment ; but the master is not restricted to this, for, having au- 
thority to correct, he may adopt the mode most likely to pre- 
vent others from following a bad example.^ It has been said 
that tying up and whipping, which is often resorted to, is igno- 
minious, and ought not to be allowed. But it may be sometimes 
necessary. The injury, however, must necessarily take place 
in the presence of many witnesses, most of whom, from sympa- 
thy and fellowship, will be usually ready to vindicate the cause 
of the sufferer, and the consequences of the law are, therefore, 
more likely to overtake the officer for abusing his authority. If 
restrictions and limits shall be previously appointed to the au- 
thority of the master or the mode of exercising it, great danger 
will arise to the officers of the ship, who, being always the 
smallest party, may be exposed to hazards which will render 
the sea-faring life, so essential to the world, too formidable for 
any to encounter. It has been argued that to permit the use 
of personal violence by way of punishment, after an offense 
has been committed, is to encourage vindictiveness and malice 

1 Abbot on Shipping, p. 2, chap. 4, sec. 4. 


on the part of the master. But, on the other hand, to forbid 
any punishment except at the very instant that the offense is 
committed, might be attended with consequences at least a§ se- 
rious, for it will then be inflicted in the heat of blood and with- 
out choice perhaps as to the mode, so that life would often be 
put at hazard. Cas^s of personal violence and injuries, there- 
fore, which are not so outrageous as to amount to an abuse of 
authority on the part of the officers, must be regarded in the 
light of damnum absque injuria^ for which the sufferer can 
maintain no action. The only security which can be obtained 
is, amenability to the law if the master transfjresses due bounds. 
If it should appear that the intervening time has been used to 
inflame instead of moderating passion, and that the punishment 
was finally inflicted, either in kind or degree, to gratify a ma- 
licious or vindictive disposition rather than to subdue the temper 
of the offending party or to deter others, retributive justice 
should apportion the penalty and the damages to the malignity 
of the motives. These principles may be undisputed if we 
recollect that the safety of lives depends upon unrestricted au- 
thority upon the part of the commander in all cases of emer- 
gency. In the meantime, the laws, although suspended, have 
not lost their force, and the application of them, when the mar- 
iners have returned within their protection, will usually guard 
them from or compensate them in some degree for an abuse of 


^Sampson r. Smith, 15 Mass. 365; Aertscu r. Ship Aurora, Bee Adm. 161; 
Michaelson v. Deuison, 3 Day C. C. 294; Saunders v. Buckup, Bl. & Howl. 261; 
Forbes r. Parsons, Crabbe C. C. 283; Cushman v. Ryan, 1 Story, 91; Brown t^. 
Howard, 14 Johns. 119; Benton r. Whitney, Crabbe C. C. 417; Schelter v. York, 
Crabbe C. C. 449; Flemming i\ Ball, 1 Bay, 3; Auberry f. James, 1 Vent. 70; 
Watson V. Christie, 2 B. & P. 224; 1-Amb v. Burnett, 1 C. & J. 291. The master 
ha& the sole and exclusive command in the navifj^ation and management of the 
vessel. He may enforce discipline, and may use force when occasion requires, 
and may resort to weapons; but they must be proper weapons. He may use 
a deadly weapon when necessary to suppress a mutiny, but only when mutiny- 
exists or is threatened. The master may also restrain, or even confine a pas.sea- 
ger who refuses to submit to the necessary discipline of the ship; but should 
confer with the other olBcers and enter the facts in the log-book. (Desty*s Ship- 
ping and Admiralty, §§ 128, 129, citing Butler v. McLellan, 1 Ware, 219; Jay 
r. Almy, 1 Wood. & M. 268; The Elizabeth Frith, Blatchf. & H. 195; Grant v. 
Bailey, 12 Mod. 440; The Maria, 1 Pet Adm. 180; The Nimrod, 1 Ware, 18; 
Wilkes V. Dinsman, 7 How. 128; Fuller v. Colby, 3 Wood. & M. 6; Gould v. 
Christianson, Blatchf. & H. 521; Rice r. The Polly and Kitty, 2 Pet. Adm. 420; 


§ 35. Injuries from animals. — It is a well-settled principle, 
that in all cases where an action of trespass or case is brought 
for mischief done to the person or personal property of another, 
by animals mansuetce naturoR^ such as horses, oxen, cows, sheep, 
swine, etc., the owner must be shown to have had notice of their 
viciousness before he can be charged ; because such animals are 
not by nature fierce or dangerous, and such notice must be al- 
leged in the declaration; but as to animals yeroe naturoe^ such as 
lions, tigers, and the like, the keeper is liable without notice for 
any damage they may do, on the ground that by nature such 
animals are fierce and dangerous.^ But where the animals are 
committing a trespass upon the close of another when doing 
the damage, the owner of even tame or domestic animals may 
be responsible, whether he has notice of their propensities or 

Where injuries are committed by animals, but not according 
to their nature, contra naturam^ the owner is not liable, if he 
had no notice of the propensity. If the defendant's horse kicks 
the plaintiff, neither plaintiff nor defendant being at fault, and 
the defendant having no notice of a propensity of the horse to 
kick, the defendant is not liable, since it is not natural for all 
horses, nor for most horses, to kick people, unless provoked to 
the act.^ It is also a rule that the injured person's right of re- 
dress will 4be defeated if the injury was caused by his own fault. 
A person who irritates an animal and is bitten or kicked in turn, 
cannot recover; but the fault of the injured party must have a 
necessary and natural connection with the injury.* 

§ 36. Seduction and criminal conversation. — At com- 
mon law no action could be maintained by the female who had 
been seduced against her seducer for the seduction, she being 
in pari delicto. It was damnum absque injuria as to her. Nor 
was there a direct remedy by the parent, guardian, or master 

The FalledO) 3 Ware, 321; Boberts v. Eldridge, 1 Sprague, 54; and many other 

1 9 Bac. Abr. tit. Trespass, i, 505; Jenkins v. Turner, 1 Ld. Raym. 109; Hinck- 
ley V. Emerson, 4 Gowen, 351 ; Mason v. KeeUng, and Rex v. Huggins, 2 Ld. 
Raym. 1583. 

« 3 Blackst. Com. 211; Dolph v. Ferris, 7 Watts & S. 367. 

« Cox r. Burbridge, 13 Com. B. N. S. 430. 

* Loomis V, Terry, 17 Wend. 496. 


for the injury. Such persons, or a husband even, could only 
maintain the action when the relation of master and servant ex- 
isted, either actually or constructively, between the plaintiff and 
the female seduced, and this at the time of the seduction. The 
loss of services, per quod servitium amisit^ was the foundation 
of the action. If there was no loss of service, there could be no 
recovery.^ But statutes of several States have given the right 
of action to the female. 

Where the husband connives, colludes at, or suffers his wife's 
seduction, he has no remedy at law against the seducer ; and if 
the plaintiff, by connivance, co-operates to produce the seduction 
of a daughter, it is a defense.^ In such a case, the plaintiff is 
in pari delicto. 

The rules of the common law in reference to seduction, and 
especially as applied to actions by parents for the seduction of 
their daughters, presented frequent cases of extreme hardship, 
and frequent illustrations of the doctrine of damnum absque in- 
juria in its harshest aspect. If the daughter was of age, and 
not in the actual service of the parent when the seduction took 
place, the parent had no redress at law. The action was founded 
on the fiction of loss of service. The technical relation of mas- 
ter and servant must have subsisted. If she was under age, 
however, she was presumed to be under the control and protec- 
tion of the parent, so as to entitle the latter to bring the action.^ 
The hardships of the ancient law have been very generally rem- 
edied by modern statutes. But a few illustrations will now be 
given to show the condition of the common law, which was not 
considered to be a very creditable one, even by the judges who 
felt called upon to administer it. 

An action of trespass vi et armis was brought for an assault 
upon the plaintiff's daughter, and getting her with child, and 

1 3 Blackst. Com. 140; Grinnell v. WeUs, 7 Man. & Q. 1033; Ellingtbn v. EUing- 
ton, 47 Miss. 329; Gray r. Darlande, 51 N. Y. 424; Thompson v. Ross, 6 Hurl. & 
K. 16; Boberts v. ConneUy, 14 Ala. 235. 

2 Rea V, Tucker, 51 111. 110; Van Vacter «. McKlllip, 7 Blackf. 678; Pierce v. 
Pierce, 3 Pick. 299; Smith v. AUison, Bull. N. P. 27; Travis v. Bur^^r, 34 Barb. 
614; Fletcher v. Randell, Anth. 196. 

8 Nickerson v. Stryker, 10 Johns. 115; Martin v. Payne, 9 Johns. 3S7; Patter- 
son V. Thompson, 24 Ark. 55; Mercer v. Walmesley, 5 Har. & J. 27; Millar v. 
Thompson, 1 Wend. 447; Greorge v. Van Horn, 9 Barb. 523; Phipps v. Garland, 3 
Dev. & B. 44; McDaniel t;. Edwards^ 7 Ired. 406; Lee v. Hodges, 13 Gratt. 726. 


the declaration concluded with a pefn quod sei'vitium amisit The 
facte, as agreed upon, were that the plaintiff's daughter, being 
twenty-three years of age, hired herself to one S as a servant, 
and w€ftit to hire with him, and served him for some time. Dur- 
ing her service she was gotten with child by another party, the 
defendant, and being therefore unable to perform her service as 
she was used and ought to do, she was discharged by S, her 
master, who paid her her wages in proportion to the service she 
had already done him ; and the plaintiff, her father, received 
her when no one else would, and lodged and boarded her in his 
house. She was there delivered of a child, and the plaintiff 
maintained her during her lying-in at his own expense. The 
question was whether the plaintiff could maintain the action. 
As the parties were poor, the court proposed a compromise, 
which was accepted. It was, that all proceedings be stayed with- 
out costs on either side. The reporter understood that the court 
were of the opinion that the case could not be maintained.^ 
The defendant's argument, which we may suppose met with the 
approbation of the court, was substantially as follows : The 
foundation of actions of this kind has been loss of service. The 
father's interest in the child, whatever it migl\t have been dur- 
ing infancy, ceases at the child's coming to the age of twenty- 
one. (This was in England, in 1766.) Many injuries may be 
done to a child which are not the subjects of actions by the 
father. An action will not lie by the father for debauching his 
daughter.^ If the father maintains the daughter in his own 
house, he is entitled to her service, and may maintain an action 
for the loss of her service. But here she was hired out to serv- 
ice in another man's house. It is not stated that she was unable 
to maintain herself. If she had been under age, and under her 
father's roof, the case would be different. The foundation of 
such a suit must be loss of service, and where a declaration 
stated that the defendant, contriving and maliciously intending 
to oppress, injure, and impoverish the plaintiff, unlawfully and 
injuriously seduced, debauched, and carnally knew the plaintiff's 
daughter, and got her with child, whereby she became sick and 

^ Postletbwaite v. Parkes, 3 Burr. 1S78. See, also, Dean v. Peel, 5 East, 45 ; Carr 
V. Clarke, 2 Chit. 260. 
'Russel V. Come, 2 Baym. 1032. 


ill, and afterwards was delivered of the child so begot by the 
defendant, by means of which sickness and dielivery the daugh- 
ter was for a long time unable to work or maintain herself, 
and the plaintiff, being of sufficient ability in that behatf, was 
obliged to maintain her, and therein necessarily laid out and 
expended a large sum of money, and underwent great trouble, 
fatigue, and anxiety, the court held that the defendant was en- 
titled to judgment, and no action could be maintained. Lord 
Mansfield said that, ^^ after looking into the cases, the court 
found that there was no precedent of such an action unless 
upon a quod servitium amisit The case of Russel v. Corne ^ is 
in point. This is an action brought by a third person for the 
incontinence of two people, both of whom may possibly be of 
age — at least, it does not appear that they are otherwise. We 
are all of opinion that this action cannot be maintained.'^ ^ A 
declaration stated that the daughter of the plaintiff, being a 
minor and unmarried, had become and was with the assent of 
her father a domestic servant of the defendant for certain 
agreed wages, and with the intention on the part of the plaintiff 
and his daughter that she should return to her father whenever 
she quitted the defendant's service, unless she should immediately 
proceed to the service of some other person than the defendant 
or the plaintiff. It then averred that at the time of the griev- 
ance, the daughter was able and accustomed, and but for the 
committing of the grievance would have continued to do and 
perform domestic services, and by means thereof to support her- 
self without assistance from her father while she was in the 
domestic service of another person, and to render great assist- 
ance to her father while living with him. It then alleged the 
seduction of the daughter by the defendant ; that she became 
pregnant, and returned to her father's house ; and that, by rea- 
son of the seduction, she became unable to maintain herself, and 
thereby the plaintiff was charged with her support and medical 
expenses, and deprived of the benefit of her services. But the 
objection was taken that there was no allegation that the 
daughter was, at the time of her seduction, in the service of 

1 2 Raym. 1081. 

2 Satterthwaite r. Dewhurst, 4 Doug. 315; Harris v. Butler, 2 Mees. & W. 539; 
Grinnell v. Wells, 7 Man. Sc G. 1033. But see Hunt r. Wotton, T. Raym. 269 


the plaintiff. Parke, B., said that the girl was in the actual . 
service of another person, and her intention was not to return 
at any definite time to her father's house. That an action for 
seduction would not lie under such circumstances he considered 
clear. ^' In order to sustain this action, there must be damnum 
et injuria. The plaintiff not having shown any right to the 
services of his daughter at the time of the seduction, there 
is here damnum absque injuria. A mere temporary absence un- 
doubtedly would not be sufficient to defeat the action, but that 
is very different from a continued and regular service." ^ And in 
another case Tindal, C. J., observed that ^^ the foundation of 
the action by a father to recover damages against the wrong- 
doer for the seduction of his daughter has been uniformly 
placed, from the earliest time hitherto, not upon the seduction 
itself, which is the wrongful act of the defendant, but upon 
the loss of service of the daughter, in which service he is 
supposed to have a legal right or interest." ^ In a case 
in Pennsylvania, the seduction took place during the life- 
time of the father, but he died without bringing suit, and the 
mother then brought the action. The daughter, who was above 
the age of twenty-one years when the injury was done, resided 
with her father, and had the direction of his household affairs 
until his death, when she resided with her mother, who became 
the head of the family, and at whose house she was delivered of 
a child, and was never in good health afterwards. She remained 
with her mother, by whom both she and her child were sup- 
ported, until she died. The loss of service was again invoked 
as the foundation of the action. Whatever damage the mother 
might sustain arose, as the court considered, from the act com- 
mitted in the father's lifetime. The daughter was his servant. 
When her mother became, on the husband's death, the mistress 
of the house, the mischief had been done. If the alleged tres- 
pass gave the mother no cause of action, it was held that the 
consequences of it would not. When the trespass was com- 
mitted the daughter was the servant of another. It was held to 

^ Blaymire v. Haley, 6 Mees. & W. 55. 

^ Eager r. Grimwood, 1 Exch. 61; Grinnell t'. Wells, 7 Man. & G. 1033; Davies 
r. Williams, 10 Q. B. 726; Thompson t\ Ross, 5 Hurl. & N. 16; Manley v. Field, 7 
Com. B. N. S. 96; Hedges r. Tagg, 7 Excb. 283. 


be damnum absque injuria.^ In New York a plaintiff brought 
an action for the seduction of his step-daughter, and the court 
held it not maintainable on the ground that there was no tie of 
blood between the plaintiff and the girl ; that the seduction was 
before she had returned to his home, after service elsewhere, 
and that neither owed any obligation to the other. There was 
no ground, as in the case of a natural parent, for implying the 
relation of master and servant. A recovery under these circum- 
stances was held to be clearly wrong in point of principle, and 
erroneous in point of law.^ If the loss of health be caused by 
mental suffering, not the consequence of the seduction, but pro- 
duced by intervening causes, the loss of service is not in contem- 
plation of law the proper consequence of the defendant's act. 
If the defendant seduces the plaintiff's minor daughter, and sub- 
sequently abandons her, in consequence of which abandonment 
she suffers such distress of mind as to bring illness upon her, 
and incapacitate her for performing services for the plaintiff, no 
pregnancy or disease resulting as a direct consequence of the 
seduction, the plaintiff cannot maintain his action.^ As to the 
carelessness of the parent of a daughter, this may defeat his 
recovery, as where a father allowed the defendant to visit his 
daughter after notice that he was a married man and a libertine ; 
the defendant, on inquiry by the plaintiff as to this, representing 
that his wife was an abandoned woman, and that he would soon 
obtain a divorce from her and marry the plaintiff's daughter. 
The plaintiff is not entitled to recover for the daughter's seduc- 
tion.^ The right of action for seducing and debauching a man's 
wife, and for the enticement and harboring of her, rest upon the 
same ground — the loss of consortium — ^including affection, soci- 
ety, and aid, and arises without regard to pecuniary damage.^ 
So that upon separation by articles of agreement the husband, 
having voluntarily parted with the consortium of his wife, he 

^ Logan V. Mnrray, 6 Serg. & B. 175; Heinrichs v. Kerchner, 35 Mo. STS. 

« Hartley j), Rlchtmyer, 4 N. Y. 38; Roberts v. Connelly, 14 Ala. 236; Dain v. 
Wycoff, 7 N. Y. 191; Sonth v. Denniston, 2 Watts, 474. See Leipe v. Eisenlerd, 
32 N. Y. 229, 729; Fernster v. Moyer, 3 Watts & S. 416. See, contra, Ellington v. 
Ellington, 47 Miss. 329; Ingersoll v. Jones, 5 Barb. 661; Yaughan t*. Rhodes, 2 
McC. 227. 

3 Abrahams v. Kidney, 104 Mass. 222; Boyle v. Brandon, 13 Mees. & W. 738. 

* Reddie v. Scoolt, Peake, 240. 

6 Wilson V. Webster, 7 Car. & P. 198. 


cannot maintain an action against one for criminal conversation 
-with her.^ But if the separation was without any relinquish- 
ment of the husband's right to the society of his wife, the case 
would be difEerent, as where he supports her under his own roof, 
and the defendant seduces her.^ If the husband is accessory to 
his own dishonor, and consents to it, he cannot recover.^ 

§ 37. Criminal conversation. — In an action of criminal 
conversation with the plaintiff's wife, it appeared that the 
plaintiff and his wife had agreed to live separately. Subse- 
quent to their separation the plaintiff proved several acts of 
adultery committed by the defendant, but there was no direct 
proof of any act of adultery before the separation, though it 
appeared that in a conversation concerning the separation, the 
plaintiff had alleged in the presence of the defendant several 
instances of gross indecency between the latter and the wife. 
But Lord Kenyon being of opinion that the gist of the action 
was the loss of the comfort and society of the wife, which was 
alleged in the declaration in the usual form, and that there was 
no evidence of the act of adultery till after the plaintiff and his 
wife were separated, and that proof of the 'act afterwards would 
not support that allegation, nonsuited the plaintiff.^ 

§ 38. Connivance of the plaintiff. — In trespass for crim- 
inal conversation and actions for loss of service, the connivance 
and consent of the plaintiff to acts of adulterj^, even with others 
than defendant, is a defense. A defendant proved that the 
plaintiff, the husband, had, before his separation from his wife, 
voluntarily permitted other men to have criminal connections 
with her, and Lord Kenyon said that it was not to be endured 
that a man should suffer and encourage his wife to live in a 
state of prostitution, and ,then come into a court of juAice and 
ask for damages. His having suffered such connection with 
other men was equally a bar to the action as if he had permitted 

1 Harvey v, Watson, 7 Man. & G. 644; TTeedon v. Timbrell, 5 Term Kep. 367; 
Chambers v. Caulfield, 6 East, 244; Winter v. Henn, 4 Car. & P. 494; Wilton u. 
Webster, 7 Car. & P. 198. 

« Barber v. Armstead, 10 Ired. 630; Chambers v. Caulfield, 6 East, 244. 

* 2 Greenl. Ev. sees. 61, 66. 

* Weedon v. TimbreU, 5 T. R. 357. See 3 Wils. 319. 

D. A. I.- 


the present defendant to be connected with her, for 8uch a hus- 
band could have none of that social affection for his wife, the 
loss of which was the ground of the action, per qtiod consortium 
amisit^ And the same judge, in an action by a father for the se- 
duction of his daughter, held that however reprehensible the con- 
duct of the defendant might be and the unfortunate girl seduced 
entitled to pity, still it must be recollected that the father was 
the plaintiff on the record, and if he had misconducted himself 
.the action could not be maintained. It appeared that he had 
been guilty of gross misconduct in suffering the defendant to 
continue his visits, knowing him to be a married man and hav- 
ing received a caution that he was a libertine, and having al- 
lowed his daughter to go alone with the defendant to the thea- 
ter, in consequence of which was the accident which gave rise 
to the action.^ The plaintiff was nonsuited. 

§ 39. Infidelity of the hnsband — ^Neglect of his wife. 

Lord Kenyon has held that a husband cannot come into court 
and ask for damages, or complain of the loss of the society of 
his wife, when he has never courted, enjoyed, or desired that 
society or consortium. So in an action for criminal conversa- 
tion with plaintiff's wife, the adultery of the latter with the 
defendant was proven. But the open and notorious infidelity of 
the husband was also proven, and also a total neglect of his 
wife's society. The husband had publicly appeared with a 
woman of loose principles as his mistress, and had taken a 
house for still another, and had notoriously kept her as a mis- 
tress. The plaintiff was nonsuited.^ But Lord Alvanley, in a 
subsequent and somewhat similar case, held that the misconduct 
of the husband did not defeat the action, but only went in miti- 
gation of damages.* 


1 Hodges V. Windham, Peake, 39; Sanborn v. Neilson, 4 N. H. 601 ; Ilea v. 
Tucker, 61 111. 110. 

2 Beddie v. Scoolt, Peake, 240. See, also, to same effect, Akerley v. Haines, 2 
Caines, 292; Duberley v. Guning, 4 T. R. 651; Vossel r. Cole, 10 Mo. 636; Seagar 
V. Sligerland, 2 Caines, 219; Travis r. Barger, 24 Barb. 614; Graham v. Smith, 1 
Edm. Sel. Cas. 267; Verholf v. Van Honwenlengen, 21 Iowa, 429; Smith v. Mas- 
ten, 15 Wend. 270. 

8 Wyndham r. Wycombe, 4 Eap. 16. 

* Bromley v. Wallace, 4 Esp. 27. See, also, Rea v. Tucker, 51 111. 110; Sanborn 
V. Neilson, 4 N. H. 501. 




§ 40. False imprisonment. 

§ 41. What does not constitate imprisonment. 

§ 42. Lawful arrests. 

§ 43. Justifiable detentions. 

§ 44. Imprisonment by commanders of vessels. 

§ 40. False imprisonment. — It may generally be shown, 
in defense of an action for false imprisonment, that a warrant of 
arrest or mittimus from a competent court or magistrate, hav- 
ing jurisdiction of the offense, and v^iid on its face, has been 
issued. It is usually a justification' of and protection to an offi- 
cer, in making an arrest, and imprisoning the party, according 
to the terms of the process. So a ministerial officer is protected 
in the execution of process valid on its face, issued by a court 
or magistrate having jurisdiction of the subject-matter to which 
it relates.^ In Oregon, it has been held that a private person 
may justify an arrest for felony by a mere preponderance of 
evidence thafr the accused had been guilty of a felony, and may 
justify the firing of a gun upon the accused by evidence that 
it was necessary in making the arrest.^ Threats made to an 
officer by a brother of the plaintiff after the arrest have been 
held admissible for the purpose of justifying the officer in put- 
ting the plaintiff in irons.^ Where there was evidence that the 
plaintiff, who was arrested by a police officer, on information 
that he had committed a felony, resisted and continued to resist * 
while being conveyed to the station-house, and threatened that 
he would murder the defendant, or any one who attempted to 
arrest him, these facts were considered admissible as affecting 

^McLean v. Cook, 23 Wis. 364; Shaw v. Davis, 55 Barb. 389; Underwood v. 
Robinson, 106 Mass. 296. 
3 Lander r. Miles, 3 Oreg. 35. See Teagarden v. Graham, 31 Ind. 422. 
» Cochran v. Toher, 14 Minn. 385. 



the question of the propriety of the force exerted upon the 
plaintiff by the defendant.^ 

§ 41. What does not constitate imprisonment — In 

general, if one man compels another to stay in any given place 
against his will, he imprisons that other just as much as if he 
locks him up in a room. It is not necessary to constitute an 
imprisonment that a man's person should be touched. Compel- 
ling a man to go in a given direction against his will, may also 
amount to an imprisonment. But if one man merely obstructs 
the passage of another in a given direction, whether by threat 
of personal violence or otherwise, leaving him at liberty to go 
in another direction, or stay where he is, this does not amount 
to an imprisonment. He does him wrong if there be a right to 
pass in that direction, and may be liable in case for obstructing 
the way, or for assault if in persisting to go forward he touches 
the person of the other,* or threatens him so as to amount to an 
assault. But imprisonment' is a total restraint of the liberty of 
the person, for however short a time, and not a partial obstruc- 
tion of his will, however inconvenient. False imprisonment at 
common law is a restraint on the liberty of the person, without 
lawful cause, either by confinement in prison, stocks, house, etc., 
or even by forcibly detaining the party in the streets against his 
will.^ But it appears that the restraint must be complete for 
the time being, however short. If there is a mode of escape, 
without danger to the person, or at least without serious incon- 
Tcnience, it will not be imprisonment if the party does Aot 
tjhoose to avail himself of it, and of course not if he does. This 
doctrine was declared in an English case,^ although Lord Chief 
Justice Denman strongly dissented from it, asking, with much 
force, "As long as I am prevented from doing what I have a 
right to do, of what importance is it that I am permitted to do 
something else ? How does the imposition of an unlawful con- 
dition show that I am not restrained? If I am locked in a 
room, am I not imprisoned, because I might effect my es- 
cape through a window, or because I might find an exit danger- 

i Fulton V. Staats, 41 N. Y. 498. 

^Selwyn's Nisi Prius, title, Imprisonment; 3 Blackst. Com. 127. 

« Bird V. Jones, 7 Q. B. 742. See Hawk v. Ridgway, 33 111. 473. 


oas or Inconvenient to myself, as by wading through water, or 
by taking a route so circuitous that my necessary affairs should 
suffer by delay?" The case, which is interesting, was where 
a part of a bridge, which was ordinarily used for a public 
footway, was appropriated for seats to view a regatta on the 
river, and separated for that purpose from the carriage-way by 
a temporary fence. The plaintiff insisted on passing along the 
part so appropriated, and attempted to climb over the fence. 
The defendant, who was clerk of the bridge company, seized 
his coat and tried to pull him back. The plaintiff, however, 
succeeded in climbing over the fence. The defendant then sta- 
tioned two policemen to prevent and they did prevent the plaint- 
iff from proceeding forward along the footway; but he was 
told he might go back into the carriage-way and proceed to the 
other side of the bridge, if he pleased. This the plaintiff re- 
fused to do, but remained where he was over half an hour, and 
then, on the defendant still refusing to let him go forward along 
the footway, he attempted to force his way, and in so doing he 
assaulted the defendant, and was taken into custody. The case 
was reduced to the question whether what passed before the as- 
sault by the plaintiff was or was not an imprisonment in point 
of law, and a majority of the English Court of Queen's Bench 
(Lord Denman, C. J., dissenting) held that it was not. 

The detention must be against the will of the party, and not 
voluntary, even in its inception. If one voluntarily place him- 
self in a situation where another may lawfully do that which 
has the effect of restraining liberty — especially if he refuse to 
depart when he may — he cannot complain that he is unlawfully^ 
imprisoned against his will. So where a sheriff's officer went 
on board a vessel to serve a writ on one of the passengers. The 
destination of the boat was known ; the accustomed hour of de~ 
parture was passed; the boat was in the act of getting under 
way ; at that moment the plaintiff chose to go on board to arrest 
a person on a process ; and, seeing the boat leaving the wharf, 
chose to remain. After the boat had proceeded some distance 
into the stream, the captain (the defendant) proposed to the 
plaintiff to send him ashore with his prisoner, if he could take 
him, otherwise to send him alone. The plaintiff refused to go 
unless the defendant would aid him in carrying the prisoner 


This the defendant would not do, and was not bound to do. He, 
however, oflEered no obstacles to the arrest. The person to be 
arrested resisted ; the passengers would not lend their aid ; the 
officer could not manage the man alone. On the refusal of the 
plaintiff to go ashore alone, the captain proceeded on his voyage. 
At some distance out of the port, and near the mouth of the 
harbor, the plaintiff demanded to be put ashore ; but the de- 
fendant then refused, and here commenced the detention against 
the will of the plaintiff. The plaintiff lost business in the way 
of serving writs to about the amount of fifty dollars, and was 
required to pay as passage money about as much more, and was 
gone two weeks. He brought suit for false imprisonment. But 
the detention was held voluntary in its inception, and lawful 
afterward ; and a new trial was granted after a verdict in plaint- 
iff's favor in the court below.^ 

§ 42. Lawful arrests. — Bestraint of the person is lawful 
whenever expressly commanded by due authority of law, and 
whenever impliedly commanded or authorized by law. Where 
a person has been arrested by an officer of the law under a war- 
rant issued from a competent judicial tribunal, the arrest is just- 
ifiable, though the writ was erroneously issued, since it was 
under a mandate which the officer had no right to disobey. An 
arrest made under a void writ will usually render an officer lia- 
ble to an action of false imprisonment, but the writ must be 
absolutely void, not merely voidable. If it be merely voidable, 
or if void, the fact does not appear on the face of the writ, the 
latter is a protection to the arresting officer.^ In other words, a 
ministerial officer is protected in the execution of process, though 
the court have not in fact authority, provided that on the face 
of the process it appear that the court has jurisdiction of the 
subject-matter, and nothing appears therein from which the 
officer can assume that the court has not authority.^ As if an 

1 Moses V. Dubois, Dud. (S. Car.) 209. See Spoor v. Spooner, 12 Met. 281. 

2 Deyo V. Van Valkenburgh, 5 Hill. 242. 
' Savacool t;. Bough ton, 5 Wend. 170. 

The same principle which protects a ministerial officer who executes the pro- 
cess of a court of general jurisdiction seems to protect him when he executes 
tlie process of a court of limited jurisdiction, if the subject-matter of the suit is 
within that jurisdiction, and nothing appears on the face of the process to show 


officer should arrest a member of the legislature, privileged at 
the time from arrest, the writ not indicating the f act.^ An arrest 
without warrant may be made by an officer of the law, qualified 
to* make arrests, upon "suspicion of felony." If the officer can 
show that, although no felony was in fact committed, yet he had 
reasonable grounds for believing that a felony had been com- 
mitted, he is justified.^ The circumstances, however, must fully 
warrant the belief.^ In an old case in the Year Book 6 Henry 
VII, (folio 6, placitum 12, about A. d. 1490) a plaintiff counted 
in trespass that the defendant, with force and arms, assaulted 
the plaintiff and wounded him, and imprisoned him for the space 
of a day, etc. And the defendant justified the wounding be- 
cause the plaintiff assaulted him the same time, and the tort that 
he had was of his own wrong, and in his defense ; and as to the 
imprisonment, he said that he was constable in the vill, and be- 
cause the plaintiff assaulted him, and broke the peace, he took 
him and carried him to jail to preserve the peace, and this was 
held a good plea by the whole court, notwithstanding he was the 
person upon whom the plaintiff would have broken the peace.* 
And in another case, a few years later, tlie court said it was 
lawful for a constable to take suspected persons who went about 
by night and slept by day, or who kept suspicious company.^ 

§ 43. Justifiable detentions. — Where a plaintiff was about 
to commit a felony by killing his wife, certain persons not offi- 
cers entered the house and confined the plaintiff in a room until 
he could be handed over to the authorities, and this imprison- 
that the person was not also within it. It may safely be asserted that wlien an 
inferior court ha^ not jurisdiction of the person of the defendant, all its pro- 
ceedings are absolutely void. Neither the members of the court nor the plaintiff, 
if he procured or assented to the proceedings, can derive any authority or pro- 
tection from them, when prosecuted by a party aggrieved ; but if a mere min- 
isterial officer executes any process upon the face of which it appears that the 
court which issued it had jurisdiction over the person, and the court had juris- 
diction of the subject-matter, he is protected, (^vacool v. Broughton, 5 Wend. 
170; Willes, 32; Lewis v. Palmer, 6 Wend. 367; Sheldon v. Van Buskirk, 2 
Comst. 473; Chegary r. Jenkins, 5 N. Y. 376; Kerr r. Mount, 28 N. Y. 659; For-* 
ter p. Purdy, 29 N. Y. 106; Paton r. Westervelt, 2 Duer, 362.) 

1 Tarlton v. Fisher, 2 Doug. 671 ; Chase v. Fish, 16 Me. 132. 

2 Rohan v. Sa\^in, 6 Cush. 281. 
Hogg V. Ward, 3 Hurl. & N. 417. 

* See, also, Chune r. Pyot, 1 Rolle R. 237 ; Levy v. Edwards, 1 Car. & P. 40. . 
« Anon. Year Book, 13 Henry VII, fol. 10, pi. 10. 


ment was held justifiable under the circumstances.^ So, where 
a constable had just ground for believing that the plaintiff either 
had committed, or was about to commit, a felony, he detained 
him till he could be brought before a justice and have his con- 
. duct investigated, and was justified.^ Whether there was rea- 
sonable cause for suspecting that a felony had been committed, 
or that plaintiff was about to commit one, seems formerly to 
have been a question for the jury.^ Now, by the weight of 
modern authority, it appears to be a question of law for the 

§ 44. Imprisonment by commanders of vessels. — A 

captain of a ship has the absolute command over the passen- 
gers and crew. The passengers as well as the crew are to obey 
all the captain's reasonable orders in an emergency, even to work 
the ship when necessary. If a passenger misconducts himself at 
table, the* captain may remove him, or may even imprison him 
for a short period, if that be necessary to enforce his lawful 
commands. The power, however, is limited to the necessity of 
the case.* 

1 Handcock v. Baker, 2 Boa. & P. 260. 

2 Beckwith v. .Philby, 6 Bam. & C. 635. See Timothy v. Simpson, 1 Cromp. 
M. &R. 757. 

» Ibid, and Nicholson r. Hardwick, 5 Car. & P. 495; Allen t\ Wright, S Car. & 
P. 526; Isaacs v. Brand, 2 Stark. 167; Cowles v. Dunbar, 2 Car. & P. 567;'Kohan 
v, Sawin, 5 Cush. 281. 

* Kindred v. Stitt, 51 111. 401; Bums v. Erben, 40 N. Y. 463; Spencer v. Anuess, 
3 Vroom, 100; Hawley v, Butler, 54 Barb. 490; Perryman v. Lister, L. R. 3 Ex. 
197: Cochran v. Toher, 14 Minn. 385; Lawrence v. Hedger, 3 Taunt. 14; Mure t\ 
Kaye, 4 Taunt. 34; Coupey v. Henley, 2 Esp. 640; Broughton v. Jackson, 18 Q. 
B. 383: Davis r. Russell, 5 Bing. 354. . 

6 King V. Franklin, 1 Fost. & F. 360. 




§ 45. Personal discomfort. 

§ 46. Mental distress. 

§ 47. Obstruction of lights. 

§ 48. Nuisances authorized by Act of the Legislature. 

§ 49. Exercise of statutory powers. 

§ 50. Trustees and Commissioners of Public Works. 

§ 45. Personal discomfort. — There is a distinction drawn 
in all the books between actions brought for nuisances upon the 
ground that the thing alleged to be a nuisance is productive of 
material injury to his property, and those where the nuisance is 
productive of personal discomfort. It very often appears that 
the cases give a man's comfort, or even his health, a secondary 
consideration. With regard to personal inconvenience, or inter- 
ference with one's enjoyment, quiet, personal freedom, or any- 
thing that discomposes or injuriously affects the senses, or the 
nerves : whether that may or may not be denominated a nuisance 
depends greatly on the circumstances of the place where the 
thing complained of actually occurs. If a man lives in a town, 
he must often subject himself to the consequences of those oper- 
ations of trade which may be carried on in his immediate locality, 
which are actually necessary for trade and commerce, and also 
for the enjoyment of property, and for the benefit of the inhab- 
itants of the town, and of the public at large. If a man lives 
in a street where there are numerous shops, and a shop is open 
next door to him, and is carried on in a fair and reasonable way, 
he cannot complain because, to himself individually, there may 
arise much personal discomfort from the trade carried on in 
that shop. But if there is a material injury to property, the 
law is very different. A man's health might be destroyed by 
reason of the discomfort, and he would have no redress ; his 
only remedy might be to move away. But if his fruit trees 
were destroyed by reason of noxious vapors, for instance, from 



adjacent smelting works, this would present a very different 
question. The submission which is required from persons liv- 
ing in society to that amount of discomfort which may arise 
from the legitimate and free exercise of the trade of their neigh- 
bors, does not always apply to circumstances the immediate re- 
sult of which is sensible injury to the value of property. In 
countries where great works are erected and carried on, persons 
may not stand on their extreme rights, and bring actions in re- 
spect of every matter of annoyance ; otherwise, the business of 
the whole country might be seriously interfered with. And 
even in actions for nuisance to property arising from noxious 
vapors, the injury, to be actionable, must be such as to visibly 
diminish the value of the property, and the comfort and enjoy- 
ment of it. All the circumstances, including those of time and 
locality, are to be considered.^ The trade, to be excusable, 
must be in a convenient and proper place.^ So far as personal 
enjoyment is concerned, no action can be maintainable for such 
odors or vapors proceeding from a neighbor's premises as are 
merely disagreeable, at least when they are the necessary effect 
of a business properly conducted there.^ The noxious gases 
must produce some important physical effect, or some sensible 
effect upon physical comfort. One may not expect to have 
air as fresh and pure after as before a certain business has 
been commenced in his vicinity,'* if it be not absolutely incom- 
patible with physical comfort. We are speaking now of private 
nuisances. If the nuisance is one not affecting physical comfort 
according to plain and simple modes of life, (not dainty or 
elegant habits of living) an action is not usually maintainable.^ 
The^ main question is considered to be whether the annoyance is 
such as materially to interfere with the ordinary comfort of 
human existence, and probably of ordinary and not fashionable 
or dainty human existence.^ 

1 St. Helen's Smelting Co. u. Tipping, 11 H. L. Cas. 642 ; S. C. in Ex. 4 Best & 
Smith, 608, 616. 

2 Hole u. Barlow, 4 Com. B. N. S. 334 ; Rich v. Basterfleld, 4 Com. B. 783. See 
Bamford v. Turnley, 3 Best & Smith, 62 ; King v. Morris, 3 C. E. Green, 397. 

8 St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642. • 
* Walter v. Selfe, 4 De Gex & S. 315. 

6 Ibid. Also, Columbus Gas Co. v. Freeland, 12 Ohio St. 392 ; Owen r.^Her- 
man, 1 Watts & S. 548 ; Crump v. Lambert, Law R. 3 Eq. 409. 
6 Crump t'. Lambert, Law R, 3 Eq. 409 ; Ball v. Ray, Law R. 8 Ch. 467 : Spar- 



§ 46. Mental distress. — ^The cases wherein nuisances, con- 
sidered as to the efEect they produce upon the mind, have been 
the subject of discussion, present some curious, if not ludicrous 
features. In a Pennsylvania case, the plaintiffs endeavored to 
enjoin the owners of a horse railroad from running their street 
cars on Sunday, and this on the ground that they were thus de- 
prived of enjoying the Sabbath as a day of rest and religious 
exercise. The bill was dismissed, on the ground that religious 
meditation and devotional exercises resulted from sentiments not 
universal, bein^ peculiar to individuals, and the injury by dis- 
turbance not tc"be measured by any standard applicable to the 
privation of ordinary comfort. " It must," said the court, " be 
something about the effects of which all agree ; otherwise that 
which might be no nuisance to the majority might be claimed 
to deteriorate property by particular persons. Noises which 
disturb sleep, bodily rest — a physical necessity — noxious gases, 
sickening smells, corrupted waters, and the like, usually affect 
the mass of the community in one and the same way, and may 
be testified to by all possessed of their natural senses, and can 
be judged of by their probable effect on health and comfort; 
and in this way damages may be perceived and estimated. Not 
so of that which onlv affects thouorht or meditation." ^ In an- 
other case one church member broufjht an action ao^ainst a 
brother member for disturbing: him during religious services in 
church by making loud noises in singing, reading, and talking. 
"In the first place," said the court, "the injury alleged is not 
the ground of an action. He (the plaintiff) claims no right in 
the building, or any pew in it, which has been invaded. There 
is no damage to his property, health, reputation, or person. He 
is disturbed in listening to a sermon by noises. Could an action 
be brought by every person whose mind or feelings were dis- 
turbed in listening to a discourse or any other mental exercise 
(and it must be the same, whether in a church or elsewhere) by 
the noises, voluntary or involuntary, of others, the field of litiga- 

hawk V. Company, 64 Pa. 401 ; Mulligan v. Elias, 12 Abb. Pr. N. S. 259; Cleve- 
land t'. Company, 5 C. E. Green, 201 : Aldricli v. Howard, 8 R. I. 246 ; Babcock 
r. Company, 5 C. E. Green, 21)0 ; Cooper v. Randall, 53 111. 24 ; Meigs t-. Lister, 8 
C. E. Green, 199 ; Emery r. Lowell, 109 Mass. 191 ; Illinois Company r. Grabill, 
50 lll."241 ; Pay r. VV^hitman, 100 Mass. 7(5 ; Francis ).-. Schoelkoph, 53 N. Y. 152. 
1 Sparhawk r. Company, 54 Pa. 401. 




tion would be extended beyond endurance. The injury, more- 
over, is not of a temporal nature ; it is altogether of a spiritual 
character, for which no action at law lies." ^ 

In these cases the religious devotees, in the first instance, and 
the brother church member in the second, were equally the un- 
fortunate victims of the doctrine of damnum absque injuria. 

§ 47. Obstruction of lights. — The owner of a house has a 
right to as many windows as he may see fit to have in his house, 
notwithstanding he may thus destroy the privacy of his neigh- 
bor. The opening of the windows is not actionable, and the 
neighbor's remedy is by obstructing the windows by structures 
on his own land, and this he may lawfully do, and in either case 
it is damnum absque injuria if they are not ancient lights, and 
the neighbor has not acquired a right by grant, occupation, and 
acquiescence. The motive for creating the obstruction appears 
immaterial.^ Even the old English doctrine as to ancient lights 
has been greatly modified in the United States. So, it is held 
that a person may legally erect a building on his own land, im- 
mediately adjoining the land of another, and put out windows 
overlooking the latter's, and although he use them for twenty 
years he will have no redress. And no action is held to lie 
against the owner of city land for erecting a wall thereupon 
which obstructs the access of light and air, as it has uninter- 
ruptedly existed for twenty years, to windows in the cellar and 
lower story in a building, ten feet within the boundary line of 
the plaintiff, unless the windows are thereby substantially de- 
prived of light.^ Shaw, C. J., remarks : " The general rule of 
the common law, before it was regulated by statute, seems to 
have been that uninterrupted enjoyment of air laterally through 
and over the land of another, and enjoyed a length of time, 
created an easement which could not be disturbed, like that of 
a right of way, or aqueduct, or drain in and over the land of 
another ; though these are distinct in their nature, consisting in 

1 Owen V. Henman, 1 Watts & S. 548 ; First Baptist Church v. Company, 5 
Barb. 79. See, also, State v. Linkhan, 69 N. C. 214. 

2 Rogers v. Sawin, 10 Gray, 379; Mahan v. Brown, 13 Wend. 261; Thurston v. 
Hancock, 12 Mass. 220; Pickard v. Collins, 23 Barb, 444. 

8 Fifty Associates v. Tudor, 6 Gray, 259; Pierre v. Femald, 26 Me. 436; Parker 
t?. Foote, 19 Wend. 309; Cherry r. Stein, 11 Md. 1. 


actual uee and qualified right of occupation in and upon the real 
property of another, and where such occupation is open and visi- 
ble, and manifestly adverse. But even this general law of Eng- 
land was somewhat modified in regard to the densely packed 
tenements of the largest city of the kingdom, by the custom of 
London. In manv of the States of the Union," it has been held 
^^ that the enjoyment of light and air in a messuage or building, 
received through windows laterally over the vacant territory or 
lower building of an adjoining proprietor, gives to the owner of 
such building no right to the continuance of such enjoyment. 
We think the rule is well settled that in a city tenement an ease- 
ment of light and air derived from use and enjoyment, or im- 
plied grant, can only extend to a reasonable distance, so as to 
give to the tenement entitled to it such an amount of air and 
light as is reasonably necessary to the comfortable and useful 
occupation of the tenement for the purposes of habitation or 
business ; not the amount which, under some circumstances, ' 
would be agreeable and pleasant, nor the full amount which the 
tenement has been accustomed to receive, but the amount rea- 
sonably necessary. The distance will be determined by a just 
regard to usage, to the habit and mode of building at the place, 
a just regard to the rights of ownership of real estate, and gen- 
erally the circumstances of the case. In cities closely built, and 
crowded with inhabitants, the limits must be obviously narrower 
than in rural districts. The question of reasonableness is a 
mixed one of fact and law ; and where all the facts and circum- 
stances appear, it is a question of law ; but in practice it is a 
question to be passed upon by the jury, under the direction of 
the court, in matters of law.^ In Vermont, it has been held that 
long continued use of light for the windows of one's building, 
standing on or near the line of his land, raises no presumption 
of a grant from the adjoining owner, and no action lies in favor of 
the former against tte latter for obstructing the light by an erec- 
tion upon his own premises.^ In Pennsylvania, substantially the 
same ground has been taken, and so in Iowa and New Jersey.^ 

1 Fifty Associates v. Tudor, 6 Gray, 259. 

a Hubbard v. Town, 33 Vt. 296. See, also, Carrig r. Dee, 14 Gray, 583; Rogers 
V. Sawln, 10 Gray, 376; Richardson t?. Bond, 15 Gray, 387. 

3 Haveretick v. Sipe, 33 Pa. 368; Morrison v. Marquardt, 24 Iowa. 35; King v. 
Miller, 4 Halst. Ch. 659. See Myers r. Gamel, 10 Barb. 537. 

62 NUISANCES. §§ 48-9 

§ 48. Nuisances authorized by act of legislature. — 

Generally, that which is authorized by the legislature cannot 
be considered as a nuisance.^ But this rule does not apply to 
abuses of corporate charters, nor the use of the charter for pur- 
poses which it does not contemplate. Acts done for the public 
benefit cannot, generally, be construed to be nuisances ; as build- 
ing a bridge over a river — the bridge having a proper draw ; 
taking away earth from a highway, and thereby lowering the 
level below the established grade, and refusing to desist when 
notified by the commissioners ; nor the mere erection of a build- 
ing intended as a poor-house and work-house.- 

§ 49. Exercise of statutory powers. — An action does not 
He for injuries sustained from the due exercise of statutory pow- 
ers, if these powers are exercised with judgment and caution, 
and the authority given by the statute is not exceeded nor abused. 
But it is otherwise if the powers are exceeded or not strictly 
pursued, or the things authorized to be done are carelessly or 
negligently done ; or if the act creating the damage is not a 
lawful act.^ Where, therefore, the legislature authorized a 
company to lay down a railway next to a public thoroughfare, 
they were presumed to have considered the question that the 
railway might be a nuisance to passengers, and to have decided 
that such persons must submit to the inconvenience for the pub- 
lic good.^ And where a company was authorized to lay down 
a railway across a public thoroughfare, and have gates across 
the high road to prevent persons from passing along the road at 
times when it would be dangerous, on account of the trains be- 

1 Trustees v. Utica, 6 Barb. 31.S; Hatch v. Vermont, 2 Wins. 142; Stoughton v. 
State, 5 Wis. 291; Common wealtli v. Reed, 34 Pa. 275; Hinchman r. Patterson, 2 
Green, 75; Samuels v. Mayor, 3 Sneed, 298; Delaware v. Commonwealth, GO Pa. 
367; Williams v. New York, 18 Barb. 222. (But see S. C. 16 N. Y. 97.) Salton- 
stall r. Banker, 8 Gray, 195; Mazetti v. New York, 3 E. D. Smith, 98; Hartwell 
V. Armstrong, 19 Barb. 166; Hodgkinson v. Long Island, 4 £dw. Ch. 411; Parsons 
t'. Travis, 1 Duer, 439. 

2 Attorney-General v. Hudson, 1 Stockt. 526; Attorney-General r. Patterson, 
1 Stockt. 624; State v. Peckard, 5 Harrington, 500. 

8 Truro &c. Company r. Bradley, 3 Macn. & G. 341 ; Caledonian Company 
V. Ogilvy. 2 Macq. 246; Bellinger r. R. R. 23 N. Y. 42; Brownlow v. Board, 31 
Law J. Com. P. 140; RadclifEe's Executors r. Mayor, 4 N. Y. 195; Boulton v. 
Crowther, 2 Bam. & C. 706; Duncan r. Findlater, 6 Clark & F. 908; Slatten t'. 
Company, 29 Iowa, 154; Bex v. Board, 5 Best & Smith, 515; 6 Ibid. 562. 

* Rex V. Pease, 4 Barn. & Adol. 42. 

§ 50 NUISANCES. 63 

ing near at hand, it was held that a person who had been de- 
layed and impeded in his journey along the high road, by reason 
of the necessary closing of the gates, had no remedy against 
the company for the injury. And so where the owner of prop- 
erty, near which a railroad is constructed, is incommoded or im- 
peded in going to and from his house, his horses frightened and 
rendered ungovernable by the noise of the trains, etc.^ 

§ 50. Trustees and commissionexB of public works, 

having public duties to perform under statutory authority, are 
not responsible for their acts so long as they keep themselves 
within the statute and the strict line of their duties ; but they 
are liable if they act in excess, or are guilty of negligence or 
misconduct in doing what they are empowered to do. If the 
injury is the inevitable result or necessary consequence of the 
work they are authorized to do, the plaintiff has no action.^ 
When commissioners intrust the execution of public works to 
contractors, engineers, and surveyors, who select their own work- 
men for the execution of the work, the commissioners are not 
personally liable for the mistakes and negligence of the latter, 
unless they personally interfere in the conduct and management 
of the work.^ 

1 Caledonian Company v. Ogilvy, 2 Macq. 229; Kellingerr. Company, 50 X. Y. 
206. But see Reg v. Company, 94 Law J. Q. B. 191. 

'^ Reg V. Longton Gas Company, 29 C. J. M. C. 118; Jones v. Bird, 6 Bam. & 
Aid. 837 ; Clothier v. Webster, 12 Com. B. N. S. 790; Sutton v. Clarke, 6 Taunt. 42. 

« Humfreys v. Mears, 1 Man. & R. 187 ; Duncan v. Fin41ater, 6 Clarke & F. 894. 



§ 61 




§ 51. Defamation. 

§ 52. Slander. 

§ 53. W^ords held not actionable. 

§ 64. Actionable words qualified by other words. 

§ 55. Charge of false swearing. 

§ 56. Slander and libel— Publication. 

§ 57. Insufficient publication. 

§ 58. Words affecting trade, business, or occupation. 

§ 59. The truth of the charge as a justification. 

§ 60. Privileged communications, utterances, and publications. 

§ 61. Extent of the privilege. 

§ 62. Reports of trials. 

§ 63. Privileged petitions. 

§ 64. Communications in reference to proposed marriages. 

§ 65. Privilege of counsel in argument. 

§ 66. Lender control of the court. 

§ 6t. Responsibility of counsel in argument. 

§ 68. Publication of argument. 

§ 69. Malicious prosecution. 

§ 70. Malicious prosecution of civil actions. 

§ 71. Defendant's proof. 

§ 51. Defamation. — In that large *class of cases where the 
words spoken or published are not actionable per se, of course, 
the plaintiff is without remedy, unless some special damage can 
be shown. This very often cannot be done, yet it cannot even 
then be said that the plaintiff is uninjured, although he is vir- 
tually without remedy. There may be injury to his feelings,^ 
and indirectly to his character, yet an injury incapable of esti- 
mation in dollars and cents — incapable of absolute proof in the 
way of special damage. The plaintiff, in such cases, may not be 
able to show that he has lost a dollar by reason of the words 
spoken or written concerning him, yet the indirect loss may be 
very large. He may be avoided by people he knows nothing of, 
and who, but for the words, might have brought him profitable 
business, or been otherwise of great advantage to him, socially, 


politically, or in the course of business. Such cases, I think, 
are properly cases of damnum absque injuria, I do not purpose 
to go extensively into the law of slander and libel. The field is 
already occupied. But, to illustrate the subject, a few instances 
will be given. 

§ 52. Slander. — Slander consists in uttering words to the 
injury of a person's reputation: No such injury is done when 
the words are uttered only to the person concerning whom they 
are spoken, no one else being present or within hearing. It is 
damage done to character in the opinion of others, and not in a 
party's self-estimation, which constitutes the material element in 
actions for slander. It must also be shown that the words were 
spoken in the presence of some person who understood them. 
If spoken in a foreign language, which no one present under- 
stood, no action will lie.^ 

§ 53. l^ords held not actionable. — The words, '' Thou 
hast stolen by the highway side " have been held not actionable, 
on two grounds : first, that they might mean that the plaintiff 
stole upon a man suddenly or unawares, without any wrong 
intent ; or second, it might be contended that the words only 
meant that he stole some unimportant article, such as a stick 
under a hedge, which could scarcely be made the subject of lar- 
ceny ; and this on the ground that when words may have a good 
construction they must not be construed in an evil sense.^ The 
words, ^' Thou art an arrant knave, for thou hast bought stolen 
swine and a stolen cow, knowing them to be st.olen," have been 
held not actionable ; for, in some cases, it is lawful to receive 
stolen goods, as if a lord of a manor or his bailiff meets with a 
suspicious person who has stolen goods, and stops the goods, 

1 SheffiU V. Van Deusen, 13 Gray, 304; Edwards v. Wooten, 12 Go. 36; Hicks' 
Case, Popham, 139; Hob. 216; Wheeler and Appleton's Case, Godb. 340; Anon. 
Style, 70; Broderick v. James, 3 Daly, 481; Phillips v. Jansen, 2 Esp. 624; Lyle 
V. Clason, 1 Gaines, 681; Force v, Warren, 16 Gom. B. N. S. 808; Desmond v. 
Brown, 33 Iowa, 13. 

^Brough r. Dennison, Goulds. 143, placitnm 68; Garle's Gase, Godb. 181. But 
see Talbot v, Gase, Gro. Eliz. 823, 317; Web v. Poor, Gro. Eliz. 669; Johnson v. 
Robertson, 8 Port. 486; Dudley v, Robertson, 2 Ired. 141; Davis v. Ockham, 
Style, 246, 227; Banfleld v. Lincoln, Freem. 278; Wilner v. Hold, Gro. Gar. 489; 
Bey nor r. Hallett, Poph. 187; Gro. Jac. 306; Gooper r. Smith, Gro. Jac. 423; But- 
ton r. Hey ward, 8 Mod. 24. 

D. A. L— 5. 


and the party confesses them to be stolen, and escapes.^ In an 
old case in the King's Bench, in 1602, the plaintiff brought an 
action on the case against the defendant, and the words were, 
(the plaintiff) "did bum my bam " (innuendo, a barn with com) 
" with his own hands, and none but he " ;. and after verdict it 
was moved, in arrest of judgment, that the words were not 
actionable, as it was not then felony to bum a bam if not par- 
cel of a mansion house, nor full of corn. The words were held 
to be received in mitiore sensu^ and the innuendo would not serve 
when the words were not slanderous.^ To say to another, 
" Thou hast forged my hand," or " Thou hast forged a writ- 
ing," is not actionable, because the words are too uncertain and 
general.^ The words, "Thou art a thief, for thou hast stolen 
half an acre of my corn," have been held not actionable, be- 
cause no one is presumed to know that it was com severed 
which was meant, and the other act would be impossible. An 
innuendo that it was com reaped and gathered into shocks did 
not, as the court held, help the plaintiff.* The words, " Thou 
hast killed my wife," were held not actionable while the plaintiff 
had a wife living.^ But there are many cases to the contrary.® 

^In re Dawson, Yely. 6; Steventon v. Hif^ins, 2 Eeb. 338; Greswell t*. Yen- 
tryes, Style, 91. See Hollls v. Briscoe, Yelv. 64. See, contra, Briggs* Case, Godb. 
157; Gamble v. Jenny, 2 Keb. 494; Alfred v. Farlow, 8 Q. B. 8M. Compare 
Pridam v. Tucker, Noy, 133; Anon. Style, 392; Tabbe v, Matthews, 1 Bolst. 109; 
King V. Lorking, 1 Bulst. 147. 

3 Barham v, Netbersal, 4 Bep. 20a; Lovet v. Hawthorne, Cro. Eliz. 884: Bandy 
*v. Hart, 46 Mo. 460; Bed way v. Gray, 31 Vt. 292. See cases where the words 

were held not to impute the crime of arson — Brettun v. Anthony, 103 Mass. 37 ; 
Tebbetts v. Groding, 9 Gray, 254; Jones v. Hungerford, 4 Gill & J. 402; Bloss t\ 
Toby, 2 Pick. 320; Sweetapple v, Jessie, 5 Bam. & Adol. 27; Bobinson v. Dram- 
mond, 24 Ala. 174. 
s Anon. 3 Leon. 231; Cassabilly v. Brit, 1 Sid. 16; PoweU v. Winde, Hob. 305, 

327 ; Dabborne v, Martin, Poph. 177; Anon. Goulds. 25; Godsel v. , Winch, 90; 

Mills V. Monday, 1 Lev. 112; Perkinson v. Bowman, Cro. Elis. 853; Thomas v, 
Axworth, Hob. 2; Venard v. Woton, Cro. Eliz. 166; Aier v. Frost, 1 Boll. B. 431. 

4 Castleman. t\ Hobbs, Cro. Eliz. 428; PoweU r. Hutchins, Cro. Jac. 204; Hall 
V. Hammond, 1 Sid. 104; Harbert v. Angell, Hutt. 113; Anon. 2 BrownL 84; 
Bynion v. Trotter, Style, 231; Cock v. Weatherby, 13 Miss. 333; Idol v. Jones, 2 
Dey. 162; Ogden v. Biley, 2 Greene, 186. See, also, Dickey v. Androe, 32 Vt 55; 
Eindlay v. Bear, 8 Serg. & B. 581; Alfele v. Wright, 17 Ohio St. 238; WaU v. 
Hoskins, 5 Ired. 177; Williams v. Gardner, 1 Mees. & W. 245; Hoskins v. Tar- 
rance, 5 Blackf . 417; Day v. Bobinson, 1 Ad. & E. 554; McCarthy v. Barrett, 12 
Minn. 494. 

^Snag V. Gee, 4 Bep. 16a; Jacob, v. Mills, Cro. Jac. 343; Boldroe v. Porter, 
Yelv. 22; Snyder v. Degant, 4 Ind. 578. See Ayres v. CbviU, 18 Barb. 200. 
•Billing V, Knight, 2 Bulst. 42; Phmips v, Kingston, 1 Vent. 117; Talbot t?. 


The words, ^^ He is a maintainer of thieves, and keepeth none 
but thieves in his house^ and I will prove it," were held not 
actionable, on the ground that the defendant did not say that 
the plaintiff knew them to be thieves, and one may have thieves 
in his house and not know them to be thieves, and then it is no 
offense.^ So with the words, " Thou hast stolen my mare, or 
consented to the stealing of her," because in the disjunctive, 
and as to the last clause because he might be said to have con- 
sented because he did not contradict it.^ 

In a somewhat startling case in 1607, in the King's Bench, an 
action was brought for the following words : " Sir Thomas Holt 
struck his cook on the head with a cleaver, and cleaved his 
head ; the one part lay on the one shoulder, and another part on 
the other." The defendant, in arrest of judgment, moved that 
these words were not actionable, for it was not averred that the 
cook was killed, and non constat; he might be living, and it 
was then but trespass.® This theory was adopted by the court, 
and the case was adjudged for the defendant. In an equally 
curious case there was an action for these words : " Thy hus- 
band was the death of J P ; and had it not been for thee and 
thy husband, he had been alive unto this day." The Chief Jus- 
tice said that the husband ^^ might be the occasion, yet not the 
cause, of the death, as by sending the said J P on a journey, 
by reason of which, etc. ; or by ousting him from his estate, so 
that he occasionally languished ; or by means more trivial than 
these."* In an action for these words: "Thou art a lewd fel- 
low ; thou didst set upon me by the highway, and take my 
purse from me ; and I will be sworn to it " — the error assigned 
was that they did not charge a felony, nor with robbing him, 
nor with taking his purse feloniously. It might be he took it 

Case. Gro. Eliz. 823; Greene v. Warner, 3 Eeb. 624; Stallings v. Newman, 26 Ala. 
300; Eckhart v. Wilson, 10 Serg. & R. 44; Ausman ^Yeal, 10 Ind. 3£^; Chambers 
V. White, 2 Jones, (N. G.) 383; Case v. Buckley, 15 Wend. 327. 

1 Ball 9. Bridges, Gro. Eliz. 746; Hall v. Hennesly, Gro. Eliz. 486. 

'Griffith's Case, Cro. Eliz. 780; Stirley v. Hill, Gro. Gar. 283; Falkner v. 
Cooper, Cart. 55. But see Harrison v. Thomborough, 10 Mod. 196. 

s Holt 17. Astrigg, Cro. Jac. 184. 

Qiuery — How would it have been had the charge been that the cook's head 
was cleaved in the middle, so that " one part lay on the one shoulder, and 
the other part on the other" ? 

4 8kelton v. Earth, 2 Sid. 7L 

»?*■•, ' 


in jest, or for some other cause ; ^^ and all the judges and 
barons were of that opinion." ^ The words, " He* is in jail for 
stealing a mare, and other beasts " are not actionable, for they 
do not afHrm directly that the plaintiff stole the beasts, as if it 
was said that he stole them, and was in jail for it ; but they only 
make report of his imprisonment, and the supposed reason for 
it.^ The words '^ Thou art as arrant a thief as any is in Eng- 
land; for thou hast broken up J S's chest, and taken away 
forty pounds " were held not actionable, because it was not 
averred " that there was any thief in England," and the money 
might have been taken away under pretense of title. The 
" taking " might have been lawful.® The words " Thou hast 
picked my pocket " have been held not actionable, if there was 
no statement that it was feloniously done.^ An action does not, 
in the absence of special damages, lie for slander, unless the 
words carry the imputation of an offense punishable by corpo- 
ral punishment, as distinguished from fines, etc., in a temporal 
court. Imputations of breaches of municipal regulations are 
not generally actionable per se,^ where at all events they are 
only punishable by fine or imprisonment, as a consequence of 
non-payment of fine. Many cases hold that the punishment 
must be infamous.^ 

In case for saying ^^ Thou art a forsworn man, and didst take 
a false oath against me before Justice Scawen ; " innuendo, 
John Scawen, a justice of the peace, after verdict, judgment 
was stayed, for the whole court held that it did not appear, ex- 
cept by the innuendo, that Scawen was a justice of the peace, 

1 Holland v. Stoner, Cro. Jac. 315 : Jjatbam v. Humphrey, Gro. Eliz. 890. But 
Bee Lewis v. Cawardly, Cro. Jac. 312. See Lawrence v. Woodward, Cro. Car. 
277 ; Gold v. Robbins, Yel. 145. 

2 Steward v. Bishop, Hob. 177. 

s Foster v. Browning, Cro. Jac. 688 ; Wittam*s Case, Noy , 116 ; Sparham v. Pye, 
Cro. Jac. 530 ; Bush v. Smith, T. Jones, 157 ; Thompson v. Knott, Yel. 14A ; 
Dacey v. Clinch, 1 Sid.' 53 ; Ifotcliffe v. Shubrey, Cro. Eliz. 224 ; Heake i\ Moul- 
ton, Yel. 90. 

^Poladtt t'. Mason, Hob. 306 ; Stent v. , Style, 127 ; Watts v. Rymer, 1 Vent. 

213. See Russell v. Wilson, 7 B. Hon. 261. Anon. Freem. 277; Mason v. Thomp- 
son, Hut. 38. See, corUra^ Bradshaw v. Walker, Hob. 249. 

* McCabe v. Foot, 15 L. T. R. N. S. 115 ; Walden v. Mitchell, 2 Vent. 265 ; Bil- 
lings V. Wing, 7 Vt. 439. 

•Wilson t'. Tatum, 8 Jones (N. C.) 300 ; Wall ». Hoskins, 5 Lred. 177 ; Skinner 
V. White, 1 Dev. & B. 471 ; Brady v. Wilson, 4 Hawks, 94 ; Shlpp v. McCraw, 3 
Murph. 463. 



and that was insufficient. Justice Scawen might have been the 
Christian and surnames of a private individual not authorized 
to administer an oath.^ In an action for slauder the words were 
" He is a thief, for he has stolen my beer " : it appeared that 
the defendant was a brewer, and that the plaintiff had lived 
with him as servant, in the course of which service he had sold 
beer to different customers of the defendant and received money 
for the same which he had not duly accounted for. Lord Kenyon 
directed the jury to consider whether these words were spoken 
in reference to the money received and unaccounted for by the 
plaintiff, or whether the defendant meant that the plaintiff had 
actually stolen, beer, for if they referred to the money not ac- 
counted for, that being a mere breach of contract, so far ex- 
plained the word " thief " as to make it not actionable.^ Law- 
rence, J., in Woolnoth v. Meadows,® remarked that many of the 
old cases on slander went to a very absurd length, and that 
many of them had been long set at rest. This was in 1803. 
Some of the specimens already given may incline the reader to 
agree with him. " Swearing to a He " does not necessarily im- 
port that the party has, in judgment of law, perjured himself. 
It may mean that he has sworn to a falsehood, without being 
conscious at the time that it was a falsehood. To be actionable 
the words must contain a charge of perjury in a clear, unequiv- 
ocal manner, and admit of no uncertainty. The charge should 
also state some court or competent officer before whom the 
plaintiff swore. It might otherwise mean extra-judicial swear- 
ing, and therefore it is held that a charge that one is forsworn 
is not actionable, because it shall not be intended in a case 
where perjury may be committed. On the other hand, a charge 
that one is perjured is actionable, for that implies the direct 
legal crime.* 

iGurnetho. Derry, 3 Ley. 166; Rutliche's Case, 4 Coke, 17. 

> Christie v. Cowell, Peake, 4. 

SS East, 463. 

^ Hopkins V. Beedle, 1 Gaines, 347, per Kent, J. ; Eimmis v. Stiles, 44 Vt. 351 ; 
Fitzsimmons t*. Cutler, 1 Aik. 33; Carlock t\ Spencer, 7 Ark, 12; McGough v. 
BfaodeB, 12 Ark. 625; Blair v. Sharp, Breese, 11; Small v. Clewley, 60 Me. 262; 
Beswick v. Chappel, 8 B. Mon. 4S6; Martin t\ Mellon, 4 Bibb, 99; Roella v. Fol- 
low, 7 Blackf. 377; Shiloab v. Ainmerman, 7 Ind. 347; Watson v. Hampton, 2 
Bibb, 319; Sheely v, Bijj^, 2 Har. & J. 363; Palmer v. Hunter, S Mo. 512; Har- 
ris V. Woody, 9 Mo. 113; McManus v. Jackson, 28 Mo. 56; Vauglian v. Havens, 


§ 54. Actionable words qualified by other words. — 

Words, otherwise actionable, may be so qualified by other or 
additional words that they lose their actionable character. Thus 
" J K is as damned a rascal as ever lived, and all who joined 
his party and the procession of the 4th of July (meaning the 
said J y R, plaintiff, and the party and procession in which 
the said J K acted as captain on the said 4th day of July) are 
a set of black-hearted highwaymen, robbers, and murderers.'' 
It appeared that on the day previous to the speaking of these 
words there had been a public procession to a church ; that K 
commanded an artillery company, which formed part of the pro- 
cession, attended with music ; that a Mr. B claimed one of the 
instruments of music, and went to the church to demand or take 
it, but was refused, and it was retained by force ; that upon this 
an affray ensued, in which Mr. B received a dangerous wound. 
It was proved that the conversation in which the words were 
used was understood by the witnesses to relate to the transac- 
tions of the preceding day, and that the terms '^ highwaymen, 
robbers, and murderers" were used in reference to the treat- 
ment of Mr. B in withholding the instrument and stabbing him. 
The court held that the words being clearly understood to apply 
to the transactions of the preceding day, and .being known not 
to amount to the charge which the words would otherwise im- 
port, were not actionable.^ 

Where it was said, ^^ Thompson is a damned thief, and so was 
his father before him, and I can prove it," but the words were 
added, ^^ Thompson received the earnings of the ship, and ought 
to pay the wages," and it appeared that the witness to whom 
these words were addressed had been master of a ship belong- 
ing to a person deceased who had left the defendant his execu- 
tor, and at the time was applying to him ior payment of his 

8 Johns. 109; Browne v. Dula, 3 Murph. 574; Jones v. Jones, 1 Jones (N. G.) 496; 
Packer v. Spangler, 2 Binn. 60; Tipton v. Kahle, 3 Watts, 90; Barger v. Barger, 
IS Pa. 489; Jones v. Marrs, 11 Humph. 214; Hogan v, Wilinoth, 16 Gratt. 80. 

1 Van Rensselaer v. Dole, 1 Johns. Gas. 279. See, also, to same effect, Parmer 
V. Anderson, 33 Ala. 78; WUliams v. Gawley, 18 Ala. 206; Wright o. Lindsay, 20 
Ala. 428; Desmond v. Brown, .S3 Iowa, 18; Garmichael v. Shield, 21 Ind. 66; She- 
cut V. McDowell, 3 Brev. 38; Ayers v, Orider, 15 III. 37; McGaleb v. Smith. 22 
Iowa, 242; Brite v. Gill, 2 Mon. 65; 6 Mon. 130; Torbett v. Glare, 9 I. L. R. 86; 
Dnnnell v, Fiske, 11 Met. 661; Norton v. Ladd, 6 N. H. 203; Quinn o. O'Gara, 2 
£. D. Smith, 388; Perry v. Man, 1 R. I. 263. 


wages : Lord Ellenborough directed a nonsuit, observing that 
the word " thief " was used without any intention in the defend- 
ant to impute felony to the plaintiff, which must appear to sup- 
port the declaration.^ 

Where words otherwise actionable are understood by the wit- 
nesses to amount only to a charge of trespass, they lose their 
actionable character — as where the words were, " You are a 
thief; you stole hoop -poles and saw -logs from off D & M's 
land," and the witnesses supposed and the jury found that this 
referred to cutting down standing timber and converting it, they 
were held not actionable — otherwise, if the jury had determined 
that the words referred to timber already cut.^ 

The old rule of construing words in mitiore sensu has been 
said in Kentucky to have been exploded, and has given way to 
that of construing them in that sense in which they would be 
understood by those who hear and read them.^ 

§ 56. Charge of false swearing. — False swearing in a 
cause, unless to some fact n^iterial to the issue, is not perjury, 
and is not the subject of indictment or punishment; and as 
slanderous words of this class are actionable in themselves only 
when they impute a crime punishable by law, it follows that to 
charge a man with false swearing simply is not actionable unless 
reference is made at the time to testimony given, wherein the 
crime of perjury might have been committed. Where the words 
spoken do not necessarily import perjury, the plaintiff is bound 
to show that he swore under such circumstances that he might 
have been guilty of the crime had he sworn falsely. He must, 
therefore, prove that the testimony alluded to by the defendant, 
and charged as false, was material. The materiality of the tes- 
timony is as essential an ingredient in the crime of perjury as 

^Thompson v, Bernard, 1 Gamp. 4S. See, also, Smith i;. Carey, 3 Camp. 461; 
Colbert v, Caldwell, 3 Grant, ISl; Allen v. Hillman, 12 Pick, 101; Robertson v. 
Lea, 1 Stewt. 141; Abrams v. Smith, S Blackf. 95; Thompson v. Grimes, 5 Ind. 
385; Hotchkiss v. Olmstead, 37 Ind. 74; Hawn v. Smith, 4 B. Mon. 385; Brown v. 
Piner, 6 Bush, 518. See Upham v, Dickinson, 50 111. 97; Taylor v. Short, 40 Ind. 

3 Dexter v. Taber, 12 Johns. 239. See Burbank v. Horn, 39 Me. 286.. See, con- 
tra, Guildeslew v. Ward, Cro. Eliz. 225. 

' Jones V. McDowell, 4 Bibb, 188; Logan v. Steele, 1 Bibb, 594. See, also, Dixon 
V. Stewart, 33 Iowa, 125 ; Mayson v. Sheppard, 12 Rich. 254. 


the legality of the oath itself. This doctrine is open, doubtless, 
to objections. The same injury may be done to the character of 
the accused by a charge of false swearing, or of perjury, when 
perjury could not have been committed, as if it could ; and it 
may produce the same or greater tendency to breach of the 
peace, but the doctrine, independent of statute, is well settled,^ 
as it is also settled that any words imputing a crime in terms 
may be so qualified and explained by concomitant circumstances 
as to become neutralized. 

§ 56. Slander and libel— Publication. — As publication is 
the utterance or exhibition of defamation before a third person 
or persons, it follows that defamation is not published when ad- 
dressed only to the plaintiff. That is, the language or repre- 
sentation cannot in such a case be actionable, per «e., even 
though the alleged wrong be directly followed by great dejec- 
tion of mind on the part of the plaintiff, and consequent sick- 
ness and inability to carry on his usual avocation, and expense 
attending upon his restoration to health, or upon the employ- 
ment of help to carry on his business. As if the defendant 
says to the plaintiff, (not in the presence of others) " You have 
committed adultery witli F." The plaintiff, a farmer, suffers 
immediate distress of mind and body ; becomes sick, and unable 
to attend to his work ; his crops suffer, and he is obliged to em- 
ploy extra help to carry on necessary work. The defendant has 
not, however, become liable for defamation.^ And if the lan- 
guage or representation be not actionable per «6., not actionable 
without proof of some special damage, the fact that the publi- 
cation of the defamation occurred in the presence of a third per- 
son, who by authority reported it to the plaintiff with similar 
results, seems not to make defendant liable.' This is on the 

1 Roberts t?. Champlin, 14 Wend. 120; Croford v. Bllsfl, 2 Bulst. 150; Michel r. 
Brown, 1 RoH. Abr. 70, pi. 45; Myau v, Okey, Freem. 17; Bullock r. Koon, 9 
Cowen, 30; 4 Wend. 531; Ross r. Rouse, 1 Wend. 476; Power ». Price, 12 Wend. 
500; Horn f. Foster, 19 Ark. 346; Wilson v. Oliphant, Wright, 153; Darling v. 
Banks, 14 HI. 46; Studdard v. Linville, 3 Hawks, 474; Sibley v. Marsh. 7 Pick. 
38; Wilson t?. Clous, 2 Spear, 1; Palmer v. Hunter, 8 Mo. 512; Cannon v. Phillips, 
2 Sneed, ISrf; Harris t;. Woody, 9 Mo. 113. See Hutchins r. Blood, 25 Wend. 413. 

2 Terwilliger v. Wands, 17 N. Y. 54; Wilson r. Golt. 17 N. Y. 442. 

« TerwiUiger r. Wands, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442, overruling 
Bradt v. Towaley, 13 Wend. 253; Fuller v. Fenner, 16 Barb. 333. 

§§ 57-8 SLANDER AXD LIBEL. 73 

ground, however, that this is not such damage as the law 
requires when the defamation is actionable per se. If the proper 
kind of special damage be proven, it alters the case ; but it must 
be the natural and usual result of the wrong ; and as a question 
of law, the damage must be that resulting from injury to cfiar- 
acter; that resulting from Jear of injury to character, or from 
wounded feelings, is not sufficient.^ 

§ 57. Libel — Insufficient publication. — In the case of a 
caricature, a witness stated that, having heard that the defend- 
ant had a copy of it, he went to the latter 's house, and requested 
to see it. The defendant thereupon produced it, and pointed out 
the figure of the plaintifi, and other persons ridiculed. But 
Lord Ellenborough ruled that this was not sufficient evidence of 
publication to support the action, and the plaintiff was non- 
suited.^ So, where a libel is contained in a letter from defend- 
ant to plaintiff, but the messenger who takes it from one to the 
other testifies that, without reading it, although unsealed, or 
allowing any one else to read it, he delivered it to the plaintiff, 
this is not a sufficient publication to sustain a civil action.^ A 
defendant who in the course of his business carries and distrib- 
utes parcels which contain libels, but which are tied up and con- 
cealed from defendant's view, is not liable If he is ignorant of 
the contents of the packages. The burden of proof, however, 
is upon him to show his want of knowledge.^ 

§ 58. "WordB affecting trade, business, or occupation. 

There are two general rules at common law for determining 
whether words are actionable. First, the imputation of crimes 
which would make the party obnoxious to punishment. Yet 
there must be precision in the charge — a general charge of 

> TerwiUlger v. Wands, 17 N. Y. 64; Wilson v. Golt, 17 N. Y. 442, overruling 
Bradt v. Towsley, 13 Wend. 253; Fuller r. Fenner, 16 Barb. 333. 

2 Smith V. Wood, 3 Camp. 323. See Gordon v. Spencer, 2 Black! . 2S6. 

< Clutterbuck v. Chaffers, 1 Stark. 471. See, also, Mcintosh v. Matherly, 9 B. 
• Mon. 119; Lyle r. Clason, 1 Caines, 581; Fouvine i7. McNease. Dudley, 303; Phil- 
lips V. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 306. 

* Day 17. Brean, 2 Moody & R. 54. See Dexter v. Spear, 4 Mason, 115; Layton 
V, Harris, 3 Harrington, 406; Maloney v. Bartlett, 3 Camp. 210; Chubb v. Flan- 
nagan, 6 Car. & P. 431; 4 Moody & R. 312a; Smith v. Ashley, 11 Met. 367; VIele 
p. Gray, 10 Abb. Pr. 7; Fox v, Broderick, 14 Ir. C. L. 463; Weir v. Hoss, 6 Ala. 



wickedness is not sufficient. And second, if the words may be 
of probable ill consequence to a person in a trade, profession, or 
office.^ But mere opprobrious words, which subject to no pun- 
ishment or temporary loss, do not seem to be actionable when 
spoken of men in office. No imputation of the breach of moral 
or legal obligation, unless enforced by temporal sanctions ; no 
charge of the want of chastity, unless under special sanctions, 
will be sufficient to maintain an action.^ Some of the earlier 
cases in regard to words spoken in reference to one's trade went 
to extreme lengths — a clergyman having failed to obtain re- 
dress for an imputation of adultery;^ and a schoolmistress hav- 
ing been declared incompetent to maintain an action for a charge 
of prostitution.* Yet such words could scarcely have failed to 
injure the success of the plaintiffs in their several positions. 
The doctrine of the older cases was, that either the want of some 
general requisite, as honesty, capacity, or fidelity, must be 
averred in the charge, or else the imputation must be connected 
with the plaintiff's office, trade, or business ; ^ and the declaration 
must set forth how it is so connected, and not leave it to be in- 
ferred.^ Words spoken of a man's past conduct in a trade with 
which he is no longer connected are not actionable, because the 
gist of the action is that the words render him less able to carry 
on the trade, and if he has quit it, the reason does not apply.^ 
Defamation under this head, to be actionable, per se, must 
have a natural tendency to injure the party complaining, in his 
occupation. It is not enough that it may possibly so injure him ; 
but it may be shown by the plaintiff that the defamation was 
published under circumstances which bring the case within the 
rule of liability ; but without such evidence the plaintiff should 

1 Onslow V. Home, 2 Blackst. 700; Aston v, Blagrave, 3 Lev. 30; 3 Mod. 26; 
Skin. 88; Kent r. Pocock, Strange, 1168. 

3 Onslow V, Home, supra ; Harrison i*. Stratton, 4 Esp. 218. 

> Parratt v. Carpenter. Noy, 61; Cro. Eliz. 502. And see Gallwey v. Marshall, 
9 Ex. 294. 

* Wharton v. Brook, 1 Vent. 21. 

» Lumby v. Allen, 1 Cromp. & J. 305; 1 Tyrw. 224. 

« Ayer v. Craven, 2 Ad. & E. 2. 

f Bellamy r. Burch, 16 Mees. & W. 590; Windsor v. Oliver, 41 Oa. 538; Edwards 
V. Howell, 10 Ired. 211; Wilson i;. Runyon, Wright, 651; Collins v. Malidt W. 
Jones, 304; Watson v. Vanderlash, Het. 71; Moore v. Syne, 2 Boll. 84; Gibbs v. 
Price, Style. 231; Dicken v. Shepherd, 22 Md. 399; Allen v. Hillman, 12 Pick. 
101; Harris r. Burley, 8 N. H. 216; Forward r. Adams, 7 Wend. 204. 


fail. As if the defendant charges the plaintiff, as a physician, 
with incontinence. This does not imply disqualification, or 
necessarily professional misconduct ; and without evidence con- 
necting the imputation with the plaintiff's professional conduct, 
he cannot recover.^ In all such cases, also, it is necessary that 
the plaintiff should have been in the exercise of the duties of 
the particular office, business, or occupation at the time of the 
alleged publication of the defamation ; as if the defendant says 
of the plaintiff, who had been a lessee of tolls at the time re- 
ferred to by the defendant, " He was wanted at T — he was a 
defaulter there." The words are not actionable per se.^ Where 
it was alleged that the plaintiff was a parson and preacher, and 
the defendant charged him with being an adulterer, it was 
urged that this touched his credit and profit, but the action was 
not supported.^ So where a physician was accused of killing a 
patient with physic, without an averment that it was done know- 
ingly and purposely ; ^ as he might have killed him with drugs, 
by making an honest mistake by applying the wrong remedies. 
Charges of bankruptcy against persons not strictly exercising an 
office or trade do not seem to be actionable;^ but otherwise if 
they do. ^* You are a cheating fellow, and keep a false book, and 
I will prove it," spoken of a draper, were held not actionable, 6n 
the ground that the '^ false book " might have had nothing to do 
with the plaintiff's trade, and the words " cheating fellow " did 
not necessarily imply that the cheating was done in his trade, 
unless they had been spoken on a communication concerning it, 
for he might have cheated at play, or gaming, etc.^ Although 
it was held in Poe v. Mondf ord ^ that it is not actionable to say 

1 AyretJ. Graven, 2 Ad. & E. 7; Lumby v. Allday, 1 Tyrw. 217; Gallwey «. 
Karshall, 9 Ex. 294; Peard v. Jones, Croke Car. 382. 

2 BeUamy v. Burch, 16 Mees. & W. 590; Gallwey v. Marshall, 9 Ex. 294. 

8 Parratt v. Carpenter, Cro. Eliz. 503, 433; Nicholson v, Lyne, Cro. Eliz. 94; 
Anon. Style, 49. See Payne v. Bennmorris, 1 Lev. 248. Contra, Demarest v. 
Barring, 6 Cowen, 76. 

^ Poe r. Mondford, Cro. Eliz. 620. But see Anon. 1 Anderson, 268. 

* Barker v, Bingrose, Poph. 184; York t'. Cecil, 1 Brownlow & G. 18. 

*Todd V, Hastings, 2 Saand. 307 ; Walmesley v. Russel, 2 Salk. 696 ; Savage v, 
Boberg, 2 Salfc. 694 ; Godfrey v, Owen, Poph. 148 ; Anon. Godb. 40 ; Eglinton v. 
AnnseU, Godb. 88; Anon. Goulds. 88; Byle's Case, Cro. Eliz. 171 ; Bronker's Case, 
Oodb. 284 ; Brooke's Case, Hut. 14 ; Betts. v. Trevaman, Cro. Jao. 536 ; Harvey 
V. Martin, T. Raym. 75 ; Lloyd v. Pierce. Cro. Jao. 424 : Coles v. Ketle, Cro. Jac. 
204 ; Bray v, Hayne, Hob. 76 ; Bell v, Thatcher, Freem. 276. 

T Cro. EUs. 620. 



of a physician, ^^ He hath killed a patient with physic ; '' and in 
Foot V, Brown ^ that it was not actionable to say of an attorney, 
or counsellor, when speaking of a particular suit : ^^ He knows 
nothing about the suit ; he will lead you on until he has undone 
you." The doctrine of these cases has been doubted, and de- 
clared unsound. In Connecticut^ it has been held that words 
are actionable in themselves which charge a physician with ig- 
norance, or want of skill, in his treatment of a particular patient, 
if the charge be isuch as imports gross ignorance, or unskillful- 
ness. So in Johnson v. Robertson,* where it was held that the 
following words, spoken of a physician in regard to his treat- 
ment of a particular case — " He killed the child by giving it too 
much calomel " — were actionable in themselves ; and so in the 
case of Tutler v, Alwin,* where it was held to be actionable to 
say of an apothecary that " he killed a patient with physic." 
A single act of a physician may evince gross ignorance, and 
such a total want of skill as will not fail to injure his reputa- 
tion, and deprive him of general confidence. When such a 
charge is made, the words have been held in America to be ac- 
tionable per se,^ 

§ 59. The truth as a justification. — ^It is now usually con- 
ceded by the courts, and frequently declared by statute or by 
the constitutions of the States, that to show the truth of the 
matter published is a complete defense to an action either of 
slander or libel. A publication of the truth is, as to a civil ac- 
tion, absolutely privileged.® But the justification must be as 
broad* as the charge, and of the very charge attempted to be 

1 8 Johns. 64. 

« Sumner v. Utley, 7 Conn. 257. 

«8 Port. 486. 

* 11 Mod. 221. 

* Sumner r. Utley, 7 Conn. 257 ; Secor v. Harris. 18 Barb. 425 ; Watson r. Van- 
derlasli, Het. 71 ; EdsaU v. Russell, 4 Mac. & 6. 1090. See Camp t\ Martin, 23 
Conn. 89. ContrcL^ Foot v. Brown, 8 Johns. 64. See, as to words imputing cer- 
tain diseases, held not actionable. Bury v. Chappell, Goldsb. 135 ; Hunt r. Jones, 
Cro. Jac. 490 ; Calif ord v. Knight, Cro. Jac. 514 ; James v. Rutlech, 4 Rep. 17a ; 
Taylor r. Hall. 2 Strange, 1189 ; Carslake v. Mapledoram, 2 T. R. 473 ; Nichols v. 
Guy, 2 Ind. 82 ; Pike v. Van Wormer, 6 How. Pr. 171 ; Irons v. Field, 9 R. I. 
216 ; Insanity— verbal charge of— Gkorge, the Count Joannes v, Burt, 6 Allen, 336. 

•IStarkie on Libel, 9: Maitland v. Goldney, 2 East. 426; Baum v. Clause, 5 
Hill, 199; Foss v. Hildreth, 10 Allen, 76; Boot v. King, 7 Cow. 613; 4 Wend. 113 ; 
Alcorn v. Hooker, 7 Blackf. 58. 


justified ; but it ne§d not go further.^ And it is sufficient to 
justify so much of the defamatory matter as is actionable, 
or so much as constitutes the sting of the charge. It is unnec- 
essary to repeat and justify every word of the alleged defama- 
tory matter. It is sufficient that the substance of the libelous 
charge be justified.* The truth of the charge, whether the 
latter be made orally or by printed or written language, is 
usually a good defense to an action for the publication of alleged 
defamation, though malicious and not reasonably believed to be 
true, at least if oral — as a person has no right to a false charac- 
ter, his real character suffers no damage that the law will rec- 
ognize, when the truth is spoken.^ So, the rule goes to the ex- 
tent of justifying a party in publishing of another the fact 
that he has suffered the penalty of the law for the commission 
of crime, though he may have been pardoned and have after- 
ward become » good citizen. As, if the defendant publishes of 
the plaintiff the statement that the latter had several years pre- 
viously committed a theft. The charge is true, though after 
conviction thereof the plaintiff was pardoned and afterward 
held a public office. Such an accusation is damnum absque 

§ 60. Privileged pnblicationB and communicationB. — 

There are occa^ons or circumstances in which the publication 
of what would otherwise be actionable defamation is excused. 
Privileged communications are either absolutely or prima facie 
privileged* — ^absolutely privileged, when the fact that it was 
published with actual, provable malice — ^that is, malice in fact — 
is immaterial and inadmissible ; j>rima facie privileged, when 
evidence is admissible to show that the communication was pub- 
lished with actual malice. It is sometimes only that words, 
spoken or published, which affect another, amount to a wrong, 

1 Sanford i;. Oaddis, 13111. 329. 

2 Clarke v. Taylor, 4 Bing. N. C. 654; Wiliwn v. Nations, 5 Yerg. 211; Morrtoon 
r. Banner, 3 Bing. N. 0. 76S; Edwards v. Bell, 1 Bing. 403; Moore v. TerreU, 1 
N. & M. 559; Cook v. Association, 5 Bl. C. C. 352; Barrows t;. Carpenter, 1 Cliff. 

'Fobs v, Hildreth, 10 Allen, 76; King v. Root, 4 Wend. 113. 
4 Baum V. Clause, 5 Hill, 199. 

^ Hastings v. Lusk, 22 Wend. 410; Shelf er v, Gooding, 2 Jones, 175. See White 
V. Nichols, 3 How. 2G6; Bigelow on Torts, chap. 2. 


however great be the injury. There is a lar^e class of publica- 
tions which are privileged by reason of the occasion on which 
they are made. They comprehend all statements made bona fide 
in performance of a duty, or with a fair and reasonable purpose 
of protecting the interest of the person making them,^ or the in- 
terest of the person to whom they are made.^ A communica- 
tion made bona fide upon any subject-matter upon which the 
party communicating has an interest, or in reference to which 
he has a duty, is privileged, if made to a person having a cor- 
responding interest or duty, although it contain criminating 
matter which, without this privilege, would be slanderous and 
actionable. But in this view the word " duty " cannot be con- 
fined to legal duties, which may be enforced by indictment, ac- 
tion, or mandamus, but must include many moral and social 
duties.^ Townshend gives as the rule as to this privilege the 
following : " One may publish, by speech or writing, whatever 
he honestly believes is essential to the protection of his own 
rights or to the rights of another, provided the publication be not 
unnecessarily made to others than to those persons whom the pub- 
lisher honestly believes can assist him in the protection of his 
own rights, or to those whom he honestly believes will, by 
reason of a knowledge of the matter published, be better ena- 
bled to assert or to protect from invasion, either their own 
rights or the rights of others entrusted to their guardianship.*' 

§ 61. Extent of the privilege. — ^The privilege is extended 
to the allegations in written pleadings, to affidavits made in the 
course of legal proceedings, though the affiants be not parties, 
and to statements of witnesses on the stand, and of the presid- 
ing judge, and of a coroner holding an inquest, and to words 
uttered in the proper discharge of official duty.* So a juror is 
under protection for anything he may say during the delibera- 
tions in the jury room, whether pertinent to the cause or not, 

1 Townshend on Slander, sec. 209; Somerville v. Hawkins, 10 Com. B. 0S3; 15 
Jar. 450. 

3 Pattison v. Jones, 8 B. & G. 678. 

> Harrison v', Bnsh, 5 El. & B. 349; Townshend on Slander, sec. 209. 

^Goodenow v. Tappan, 1 Ohio, 60; Dnnham v. Powers, 42 Vt. 1; Henderson v. 
Broomhead, 4 Hurl. & N. 577; Garr v. Selden, 4 Comst. 91; Soott v. Stansfield, 
L. B. 3Bz. 220; Beevis v. Smith, 18 Com. B. 126; Thomas v. Chuston, 2 Best & 
S. 475; Bigelow on Torts, 54. 


80 long as he honestly believed that he was properly discharg- 
ing the duties of a juror, as where a juror states in the jury 
room that he could not believe a party under oath, and accuses 
him of fraud and perjury.^ No action, either for slander or 
libel, can be maintained against a judge, magistrate, or person 
sitting in a judicial capacity over any court, judicial or military, 
recognized by and constituted according to law, nor against 
suitors, prosecutors, witnesses, counsel, or jurors, for anything 
said or done relative and pertinent to the matter in hand in the 
ordinary course of a judicial proceeding, investigation, or in- 
quiry, civil or criminal, by or before any such tribunal, however 
false or malicious it may be.^ So in regard to statements and 
publications in the course of the proceedings of the legislature, 
if they relate to the proceedings under consideration. No leg- 
islator is liable for pertinent remarks made during debate, how- 
ever injurious to the reputation or however offensive they may 
be ; ^ but he cannot print a speech delivered by him in the leg- 
islative halls, and containing defamatory matter, without be- 
coming liable, because the privilege is local, and confined to the 
legislative apartments.^ The same privilege, with like restric- 
tions, is extended to persons petitioning the legislature and leg- 
islative committees,^ and so with proceedings before church 
organizations for the discipline of members. These are con- 
sidered {jt^S2 -judicial, and language, though defamatory, ut- 
tered in the course of such proceedings, is privileged, if it be 
pertinent to the matter in issue.® Literary criticism, if it be 
bona fide criticism, is also privileged, so far as actions for de- 
famation are concerned ; but not if the critic turn aside from the 
proper purpose of criticism, and ridicule the author's person 
or character ; "^ and so with criticism of works of art.® State- 
ments made by a master derogatory to the character of his dis- 
charged servants are prima facie privileged, if made with the 

1 Danham t7. Powers, 42 Vt. 1. 

^Starkie, Slander and Libel, 184, 4th Eng. ed. 

s Bex V, Abingdon, 1 Esp. 226. 

* Rex o. Abingdon, 1 Esp. 226; Rex v. Greevy, 1 Maule & S. 273; Stockdaie v. 
Hansard, 9 Ad. & E. 1. « 

•Lake t7. King, 1 Saund. 1316; Hare v. Miller, 3 Leon. 138, 163. 

• York V, Pease, 2 Gray. 282. See Famsworth t;. Storrs, 6 Gush. 412. 
7 Garr v. Hood, 1 Gamp. 3S5. 

■ Thompson v. Shakell, 1 Moody & M. 187. 


honest intention of protecting others, and not in an officious man- 
ner,^ and not maliciously. Voluntary communications derogatory 
to character may be made without liability, if they are honafide^ 
by attorneys to their clients about parties with whom the 
clients are about to deal, and by landlords to their tenants in 
reference to the conduct of inmates of the premises, etc. When 
the relations between the parties are confidential, considerable 
latitude is allowed, on the ground of the protection of the in- 
terests of the persons to whom the communications are made.^ 

§ 62. Reports of trials before the courts, '' if sufficiently 
full to give a correct and adequate impression of the proceed- 
ings, and if not attended with defamatory comments, are abso- 
lutely privileged. If, however, the same should be partial, or 
followed by comments containing defamatory matter, the priv- 
ilege would fail and the publisher, editor, and author would be 
liable for any defamation thereby spread. For example, the 
defendant prints a short summary of the facts of a certain case 
in which the plaintiff has acted as attorney. The account of 
the trial stated that the then defendant's counsel was extremely 
severe and amusing at the expense of the present plaintiff. It 
then sets out parts of the speech of the defendant's counsel, 
which contain severe reflections on the conduct of the plaintiff 
in the trial of that action. The defendant is liable."^ The 
subject of the trial may be stated as a heading as long as there 
is no comment. If a report is headed '^ Wilful and corrupt 
perjury," and this is the substance of the indictment or the 
charge, it is privileged.* . But the publication of ex parte pro- 
ceedings before inferior courts seems not to be privileged.^ 
The publication of actual legislative proceedings is privi- 
leged, though they contained defamatory matter,^ and proba- 
bly fair and honest comments upon them are also privileged. 
The conduct of public officers and of candidates for public 

1 Pattison p. Jones, 8 Bam. & C. 578. 

2Davia r. Reeves, 5 Ir. Com. L. 79; Knight v. Gibbs, 3 Nev. & M. 469. 

8 Flint r. Pike, 4 Barn. & Cr. 473. See Lewis & Clement, 3 ^arn. &, Aid. 702. 

* Ijewis t'. Levy, El. B. & £. 537. * 

6 Cincinnati Gazette Co. v. Timberlake, 10. Ohio St. 548; Matthews v. Beach, 5 
Sandf. 206; Davison v. Duncan, 7 £1. & B. 229. 

• Wason r. Walter, L. R. 4 Q. B. 73. 



office may be criticised, but the critic must be actuated 
by an honest desire to fullfil a duty toward the public; 
and if he makes the occasion an opportunity for gratify- 
ing personal viitdictiveness and hostility, he will be liable.^ 
Publications to protect one from the frauds or depredations 
of another are prima f(icie privileged, and so ar^ those ad- 
dressed to the public in vindication of character already as- 
sailed, if made honestly and in self-defense.^ 

§ 63. Privileged petitions. — Petitions and memorials pre- 
pared bona fide and presented to the legislative or executive 
departments of government, to state officers or ministers of 
state, complaining of the conduct of magistrates or officers, 
and containing otherwise defamatory matter, but the state- 
ments and allegations being honestly believed to be true, are 
privileged. This is on the ground that all persons have an 
interest in the pure administration of public justice, and it is 
the duty of all persons who witness official misconduct to en- 
deavor to bring it to the attention of those whose duty it is to 
inquire into and punish it. But if the charges are frivolous, 
made without due inquiry into their truth or without any knowl- 
edge on the subject, the petitioner may be deemed to have acted 
from malicious motives, and his communication will not be 
privileged.* Where the creditor of an officer in the English 
army sent a petition to the Secretary of War. inclosing bills of 
exchange accepted by the officer and containing statements de- 
rogatory to the character of the officer as a man of honor, and 
concluded with a prayer that the officer might be ordered to 
discharge the debts, it was held that, although neither the Sec- 
retary nor even the Crown had power to order the money to be 
paid, yet if the jury considered that the petition contained only 
an honest statement of fact as the petitioner understood it, and 
it was bona fide for the purposes of redress and not for the pur- 
pose of slandering the plaintiff, they should find for the defendant.^ 

1 Campbell v. Spottiswood, 3 Best & S. 776. 

2 O'Donoghue v. Hussey, Irish B. 5 C. L. 124; Hatch v. Lane, 105 Mass. 394; 
Rex ». Veley, 4 ^st. & P. 1117. * 

< Harrison v. Bush, 6 El. & Bl. 354; Sturt v. Blaf(g, 10 Q. B. 906; Thorn r. 
Blauchard, 5 Johns. 508; Gray v. Pentland, 2 S. & B. 23; Hunt v. Bennett, 19 
N. Y. 173: Lake v. King, 1 Saund. 132. 

*Fairman v. Ives, 5 B. & Aid. 644; Wenman r. Ash, 13 Com. B. 845. See 
Blagg V. Sturt, 10 Q. B. 905. 

D. A. I.— 6. 

82 SLANDER AND LIBEL. §§ 64-5 

§ 64. Communications in rafaranca to propoead mar- 
riages. — Communications from near relations as to the charac- 
ter of a person whom the relative is about to marry are priv- 
ileged, if made bona fide, A son-in-law of a' widow, to whom 
the plaintiff was paying his addresses, wrote a letter to the lady 
charging the plaintiff with general gross misconduct, and warn- 
ing her against him, and the communication was considered 
privileged. Alderson, B., said : " If no explanation had been 
given of the circumstances under which the letter was written, 
the law would, from the contents, infer it to have been published 
with a malicious motive against the plaintiff. But when it is 
shown that the parties were standing in circumstances of con- 
fidence and near relationship towards each other, I think the de- 
fendant's conduct justifiable, if he really believed in the truth 
of the statements which he made, though such statements were 
in fact erroneous ; for it is for the common good of all that com- 
munications between parties situated as these were should be 
free and unrestrained. The whole question is, whether this is 
a bona fide letter." ^ 

§ 65. Privilage of connsel in argnmant. — Another in- 
stance of damnum absque injuria is where an attack is made 
by counsel upon the character of a witness in the course of a 
trial. "The benefit of the constitutional right to counsel de- 
pends very greatly on the freedom with which he is allowed to 
act, and to comment on the facts appearing in the case, and on 
the inferences deducible therefrom. The character, conduct, 
and motives of parties and their witnesses, as well as of other 
persons more remotely connected with the proceedings, enter 
very largely into any judicial inquiry, and must form the sub- 
ject of comment, if they are to be sifted and weighed. To make 
the comment of value, there must be the liberty of examination 
in every possible light, and of suggesting any view of the cir- 
cumstances of* the case, and of the motives surrounding it, which 
seems legitimate to the person discussing them. It will often hap- 
pen in criminal proceedings, that while no reasonable doubt can 
exist that a crime has been committed, there may'be very great 
doubt whether the prosecutor or the accused is the guilty party ; 

1 Todd V. Hawkins, 2 Moody & R. 21. See " Joannes" v. Bennett, 5 Allen, 169. 


and to confine the counsel for the defense to such remarks con- 
cerning the prosecutor as he might justify if he had made them 
without special occasion, would render the right to counsel, in 
many cases, of no value. The law, justly and necessarily, in 
view of the importance of the privilege, allows a very great 
liberty ih these cases, and surrounds them with a protection that 
is always a complete shield, except where the privilege of coun- 
sel has been plainly and palpably abused.'' ^ 

An attorney, therefore, in the discussion of his client's cause, 
is not liable for words spoken or written relative to the matters 
in controversy, or subjects which incidentally arise in the course 
of the trial. And no action will lie for such speaking or writing, 
however false, defamatory, or malicious may be the words, pro- 
vided the matter was material to the issue or inquiry before the 
court.^ But if an attorney wantonly departs from the evidence 
and point in issue, with an intent to injure the character of the 
adversary or that of others, without propriety or probable 
ground, he is responsible.^ 

To say that no responsibility attaches, however false or ma- 
licious the words may be, seems to be stating the rule broadly; 
but, with the proviso above mentioned, it is fully sustained by 
the authorities. 

Chief Justice Shaw has stated the rule as follows : '' We take 
the rule to be well settled by the authorities that words spoken 
in the course of judicial proceedings, though they are such as 
impute crime to another, and therefore if spoken elsewhere 
would import malice and be actionable in themselves, are not 
actionable, if they are applicable and pertinent to the subject 
of the inquiry. The question, therefore, in such cases is, not 
whether the words spoken are true, not whether they are action- 
able in themselves ; but whether they were spoken in the course 
of judicial proceedings, and whether they are relevant and perti- 

- Cooley^s Coost. Lim. *443; Brook r. Montague, Cro. Jac. 90. Approved and 
applied in Hodgson v. Scarlett, 1 Bam. & Aid. 232. See, also, Mackay v. Ford, 5 
Hurl. & K. 792; McMillan v. Birch, 1 Bin. 178; Weeks on Attorneys and Counsel- 
lors at Law, sec. 110. 

2 Kewfield v. Gopperman, 15 Abb. Pr. X. S. 360; Marsh v. Ellsworth, 36 How. 
Pr. 532; 1 Sweeny, 52; Garrr. Selden, 4 N. Y. 91 ; Commonwealth t\ Culver, 1 Pa. 
li. (T. R. 361. 

» Ibid. ; Marsh v. EUsworth, 60 N. Y. 309; Ring v. Wheeler, 7 Co wen, 725; Has- 
tings ?•. Lnsk, 22 Wend. 410; Gilbert v. People, 1 Denio, 41. 


nent to the cause or subject of the inquiry. And in determining 
what is pertinent much latitude must be allowed to the judg- 
ment and discretion of those who are intrusted with the conduct 
of a cause in court, and a much larger allowance made for the 
ardent and excited feelings with which a party or counsel, who 
naturally and almost necessarily identifies himself with his client^ 
may become animated by constantly regarding one side only of 
an interesting and animated controversy in which the dearest 
rights of such party may become involved." 

The limit to the privilege was considered by him to be this : 
That a party or counsel shall not avail himself of his situation 
to gratify private malice by uttering slanderous expressions, 
either against a party, witness, or third person, which have no 
relation to the cause or subject-matter of the inquiry. Subject 
to this restriction, it is, on the whole, for the public interest, and 
best calculated to subserve the purposes of justice, to allow coun- 
sel full freedom of speech in conducting the cases and advocat- 
ing and sustaining the rights of their constituents ; and this free- 
dom of discussion ought not to be impaired by numerous and re- 
fined distinctions.^ 

The privilege accorded to advocates has always been very great 
while they are actually commenting upon the conduct of parties, 
in any case in which they are engaged as counsel. The extent 
of the privilege has been asserted in very broad terms. And in 
Wood V. Gunston, Styles, 462, it was said, " that ^f a counsel 
speaks scandalous words against one in defending his client's 
cause, an action lies not against him for so doing, for it is his 
duty to speak for his client, and it shall be intended to be spoken 
according to his client's instructions.'' But this is not the true 
reason ; and Lord EUenborough, in repudiating this doctrine, and 
commenting on its injustice, said:'^ ^^If an action be brought 
against a counsel, then, according to that case, he is justified, 
because it will be intended that he spoke by the information of 
his client, and if an action be brought against the client he 
may justify by showing that he gave no such information to 

1 Hoar V, Wood, 3 Met. 197; Padmore v. Lawrence, 11 Ad. & E. 380; Ring v. 
Wheeler, 7 Cowen, 725; Mower t?. Watson, 11 Vt. 356; Gilbert t'. People, 1 Denio, 
41; Hastings v. Lusk, 22 Wend. 410; Bradley v. Heath, 12 Pick. 163; Warner v. 
Paine, 2 Sand. Ch. 195; Garr i\ Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358. 

2 Hodgson V. Scarlett, 1 Barn. & Aid. 238. 


his counsel. So that, if that case w.ere law, an injured party 
would be without remedy. There must be some limit laid 
down." In this case, an attorney named Hodgson brought an 
action against Scarlett, afterward Lord Abinger, who had, at the 
trial of a cause in which the former acted as attorney for the 
plaintiff, described him, in his address to the jury, as ^'a fraudu- 
lent and wicked attorney." The court decided the action not 
maintainable. Lord EUenborough, in delivering the judgment, 
used the following language: '^A counsel, intrusted with the 
interests of others, and speaking from their information, for the 
sake of public convenience, is privileged in commenting fairly 
and hona fide on the circumstances of the case, and in making 
observations on the parties concerned, and their instruments or 
agents in bringing the cause into court. Now, the plaintiff in 
this case was not merely the attorney, but was mixed up in the 
concoction of the antecedent facts, out of which the original 
cause arose ; he was cognizant of all the circumstances, and 
knew that the plaintiff had no ground of action in that case, in 
consequence of having already received more than the amount 
demandable by him. It was in commenting on this conduct 
that the words were used by the defendant. He had a right so 
to comment, for the plaintiff was mixed up with the circum- 
stances of the case, and was the agent and instrument in the 
transaction. The defendant then says that he is a fraudulent 
and wicked attorney. These were words not used at random 
and unnecessary, but were a comment upon the plaintiff 's con- 
duct as attorney. Perhaps they were too strong — it may 
have been too much to say that he was guilty of fraud as be- 
tween man and man, and of wickedness in foro divino. The 
expression, in the exercise of a candor fit to be adopted, might 
have been spared. But still a counsel might, bona fide, think 
such an expression justifiable under the circumstances. It 
appears to me that the words spoken were uttered in the 
original cause, and were relevant and pertinent to it, and 
consequently that this action is not maintainable." This de- 
cision is based upon two leading grounds, viz., (1) the 
information given by the client, and (2) its relevancy to the 

Still older authorities have made the same distinctions. In 


» ' the reign of James I,^ Sir Henry Montague pleaded, in an action 
brought against him, that he had spoken certain words com- 
plained of .as consUiarius et peritus in lege. The court adjudged 
that " a counsellor in law retained, hath a privilege to enforce 
anything which is informed him by his client, and to give it in 
evidence, it being pertinent to the matter in question, and not 
to examine whether it be true or false ; but it is at the peril of 
him who informs it, for a counsellor is at his peril to give in 
evidence that which his client informs him, being pertinent in 
the matter in question, otherwise action upon the case lies 
against him by his client, as Popham said ; but if he give in 
evidence anything not material to the issue which is scandalous, 
he ought. to aver it to be true, otherwise he is punishable ; for 
it shall be contended as spoken maliciously and without cause ; 
which is good ground for an action." 

The doctrine attributed to Popham was doubtless the law in 
very early times, and action on the case would probably lie, if a 
counsellor refused " to give in evidence that which his client in- 
formed him." ^ Afterward, however, it was expressly decided 
to the contrary, on the ground that the law looked upon the 
services of a counsel as given gratuitously^ so that he is not an- 
swerable for any neglect or default in the conduct of a cause. 

Going several lengths further upon the question of immunity 
of counsel at a trial, Mr. Justice Bayley, in a later case,^ said : 
" The speech of a counsel is privileged by the occasion on which 
it is spoken ; he is at liberty to make strong, even calumnious 
observations against the party, the witnesses, and the attorney 
in the cause. The law presumes that he acts in discharge of 
his duty, and in pursuance of his instructions, and allows him 
this privilege, because it is for the advantage of the administra- 
tion of justice that he should have free liberty of speech. But 
the privilege is confessedly confined to the utterance of the 
words complained of in a court of justice. If the counsel who 
has spoken them, or any one else, afterward publishes or repeats 
them out of court, he becomes liable to an action. The privi- 
lege is strictly one of counsel in court. It was decided in the 

1 Brook V. Sir Henry Montage, Gro. Jac. 90. 

aRolle'sAbridg. 91. 

8 Flint 17. Pike, 4 Baru. & C, 478. 

§§ 66-7 SLANDER AND LIBEL. 87 

case of Flint v. Pike, 4 Barn. & C. 480, that, although any one 
IS ' at liberty to publish a history of the trial — that is, of the 
facts of the case, and of the law as applied to those facts — he is 
not at liberty to publish observations made by counsel injurious 
to the character of individuals.' " 

§ 66. Argnxnant of counsel under control of the court 

The privilege of counsel as to argument being understood, it is 
also to be borne in mind that the right is to be exercised under 
the control and direction of the court. The determination of 
the question as to what shall be admitted in argument to the 
jury, outside of the facts brought out in evidence, the degree 
of invective allowed to counsel, and the time during which the 
argument may continue, have generally been considered subject 
to judicial regulation.^ 

§ 67. Responsibility of counsel in argument. — A» long 
as counsel confine themselves to the issues, they are privileged 
to comment upon individuals, without being liable in an action 
against them. Words, either spoken or written, in a legal pro- 
ceeding, they being pertinent and material to the controversy, 
are privileged. This is the general rule,^ but counsel cannot go 
outside of the case and make slanderous attacks upon a party. 
If he does, he is no more privileged than any other person, and 
is liable. An attorney, in defending his client from a charge of 
assault in turning out the plaintiff from certain premises in which 
he had agreed to sell wine under agreement with a certain party, 
stated that that party had sufficient reasons for determining the 
agreement, and that he had been plundered by the plaintiff to a 
frightful extent. This was held a statement connected with 
the transaction, and an inference from the facts, and was privi- 
leged.^ And so, where a party was alleged to have kept a sum 
of money, which by his contract he ought not to have kept, 

1 State V. Hamilton, 55 Mo. 520 ; State v. Waltham, 4S Mo. 55 ; Proffatt on 
Trial by Jury, sec. 249. See trial of Dean of St. Asaph, 21 How. St. Tr. 847 ; 
Weeks on attorneys and Counsellors at Law, sec. 111. 

^Proffat on Trial by Jury, sec. 265; Garr v. Selden, 4 N. Y. 91; Lea v. White, 
4Sneed» 111; Jennings r. Paine, 4 Wis. 358; Parker v. Mitchell, 31 Barb. 469; 
Hoar V. Wood. 3 Met. 193; Hodgson t*. Scarlett, 1 Barn. & Aid. 232: McMillan v. 
Birch, 1 Binn. 178; Brook v. Montague, Cro. Jac. 90. 

« Mackey i;. Ford, 5 Hurl. & N. 792. 


counsel used the language, ^^ He has defrauded us/' this was 
held privileged.^ . The subject has been already discussed in a 
preceding section while considering the general privilege of 
counsel in argument.^ 

§ 68. Publication of argnment. — There is, however, a 
well-defined difference between the rules of law which protect 
communications, because of the occasion on which they are 
made, and the duty resting upon the person making them, and 
those rules which concern the spreading before the world the 
same communications. It does not follow, because a counsel 
may freely speak in court as he believes, or is instructed, that 
therefore he may publish his speech through the public press. 
The priyilege in court is necessary to the complete discharge of 
his duty to his client ; but when the suit is ended, that duty is 
discharged, and he is not called upon to append from the court 
and jtiry to the general public. Still, it seems settled that a 
fair and impartial account of judicial proceedings which have 
not been ex 2Kfrte, but in the hearing of both parties, is, gener- 
ally speaking, justifiable.^ 

§ 69. Malicious prosecutioxL — To maintain an action for 
malicious prosecution proper, three facts, if controverted, must 

1 Nt^edham v. Dowling, 15 Ijelvt J. Com. P. 9. See Weeks on Attorneys and 
Counsellors at Law, .seo. 110. AVliere a person, appearing for himself, applied 
to the court for an extension of time to file a transcript on appeal, and in the 
application went outside of the reason for asking the order, which was an acci- 
dent to himself that disabled him from preparing tlie transcript, and charged 
his attorney in the court below with collusion with the adverse attorney, this 
was held not privileged, and was also held to be libelous per se. (Wyatt v. 
Buell, 47 Cal. 624.) 

- ^^'eeks on Attorneys and Counsellors at Law, sec. IIG. A printed report by 
the defendant of proceedings before a justice of the peace, resulting in the 
committal of the plaintiff, has recently been held privileged in Maryland, if 
found by the jury to have been a true report, and made without malice; and so 
of comments on the same, if found to be fair comments. (McBee v. Fulton, 4V 
Md. 403.) 

8 Hoare v. Silverlock, 9 Com. H. 20; Lewis v. Levy, El. B. & E. 537; Ryalls r. 
Leader, L. R. 1 Ex. 296; Stanley v. Webb, 4 Sand. 21; Cincinnati Co. v. Tim- 
berlake, 10 Ohio, (N. S.) 548. See Rex v. Carlisle, 3 Barn. & Aid. ^67: Rex v. 
Creavy, 1 Maule & S. 273, as to indecent and blasphemous publications. See 
also Cooley's Const. Limitations, *449. As to publication of speech of client 
refiectiug on counsel, see Sandford i'. Bennett, 24 X. Y. 20; and upon the general 
subject, Townshend on Libel and Slander, 3rd ed.. sec. 2*29; Edsall v. Brooks, 17 
Abb. Pr. 227; 2t? How. Pr. 426. 


be established : first, that the prosecution is at end, and was de- 
termined in favor of the plaintiff ; second, the want of probable 
cause ; third, malice. A mere acquittal is not prima facie evi- 
dence of probable cause ; some other evidence must be given.^ 

1 VHnderbilt ». Mathis, 5 Diier, 304; Gorton v. DeAngells, 6 Wend. 418; Van- 
dnzer v. lindeiman, 10 Johns. 106; Murray r. Long, 1 Wend. 140; Winans v. 
Tajlor, 6 Bing. 183; Wiggin v. Coffin, 3 Story, 1; Bulkeley v. Smith, 2 Duer, 271; 
Levy V. Brannan, 39 Cal. 485; Good v. French, 115 Mas8.'20l. 

1st. The prosecution must have terminated, (Cardival v. Smith, 109 Mass. 158; 
O'Brien v. Barry, 106 Mass. oOO; Fisher v. Bristow, 1 Doug. 215) and this the 
plaintiff must show. It must have terminated with an acquittal: otherwise, 
the case would be retried in the second action (Parker r. Huntington, 7 Gray, 
37: Kaconv. Towne, 4 Cush. 217: Boyd v. Cross, 35 Md. 194); and if the pro- 
ceeding ended in a compromise, there is no ground for the action. (Mayer v. 
Walter. 64 Pa. 283; Hamilburgh v. Shephard, 119 Mass. 30.) But it has been 
said not to be necessary to show an acquittal in ex parte proceedings that are 
based upon affidavits, the truth of which is not controvertible, as in an action 
for maliciously and without reasonable or probable cause procuring the plaintiff 
to be held to bail to keep the peace. (Steward x\ Gromett, 7 Com. B. N. S. 191. 
See Cardival ». Smith, stipra.) 

2nd. Want of reasonable and probable cause must be shown — sufficient, 
probably, to satisfy a reasonable man that the accuser had no ground for 
proceeding except his desire to injure the accused, (Willaus v. Taylor, 6 Bing. 
18^)) or that the accuser acted on very slight circumstances of suspicion, (Busst 
r. Gibbons, 30 Law J. Ex. 75) to be judged by the existing facts at the time 
of the arrest, (Holbum t'. Neal, 4 Dana, 120; Swaim v. Stafford, 4 Ired. 392, 398) 
without regard to what was found out afterwards. The belief must have been 
that of a reasonable man. There must be reasonable ground for suspicion, 
supported by circumstances sufficiently strong in themselves to warrant a 
cautious man in the belief of the guilt of the accused. (Muns v. Diipont, 3 C. C. 31; Bacon r. Towne, 4 Cush. 238; Barron r. Mason, 31 Vt. 189; 
Boyd i\ Cross, 35 Md. 194; Carl v. Ayers, 53 N. Y. 14; Shane v. Brown, 28 
Iowa, .'J7.) 

It is held by some cases that if the prosecutor did not in fact know or believe 
that there was any grouud for the prosecution, yet it turned out there wa.H, he 
is still liable (Delegal r. Highley, 3 Bing. (X. C.) 950; Broad v. Ham, 5 Ibid. 722; 
Bell ('. Piercy, 5 Ired. 83) ; but others hint, at least, that there must be an actual 
want of probable cause, as well as the belief or knowledge of the fact. (Mo wry 
r. Miller, 3 Leigh, 561; Adams v, Lisher, 3 Blackf. 241; Hickman r. Griffin, 6 
Mo. ^.>T.) 

3rtl. There must be malice. This may be inferred from the want of probable 
cause, though not necessarily. It is for the plaintiff to show. (I^evy r. Bran- 
nan, ;n) Cal. 485; Dietz i\ Langlitt, 63 Pa. 2,^4; Boyd v. Cross, 35 Md. 194.) 

If the charge upon which a party is indicted or arrested be not scandalous, 
so that an action of slander might be maintained on it if made without the 
forms of law, special damage must be averred and proven. The indictment 
must charge a crime, not merely a trespass, or special injury must be shown. 
(Frierson v. Hewitt, 2 Hill, (S. C.)499; Byne r. Moore, 5 Taunt. 187.) If the 
court has exceeded its jurisdiction, or the warrant or Indictment be defective, 
numerous authorities hold that a party cannot maintain malicious prosecution, 
but only slander or trespass. (Turpin v. Remy, 3 Blackf. 211; Bodwell t7. Os- 
good, 3 Pick. 379; Braveboy r. Cockfield, and cases cited.) Professional advice 


The former prosecution must appear to have been maliciously 
instituted. If either of these things fail there is usually an end 
to the suit. No action can be sustained when the indictment was 
ignored.^ If a prosecutor take the advice of a practicing law- 
yer upon the proposition whether the facts justify a complaint, 
and act bo?ia fide upon the advice given, he will be protected, 
even though the counsel gave erroneous advice. As where upon 
a statement of facts an attorney advises a defendant that he can 
safely procure the plaintiff's arrest, the defendant is not liable, 
though the facts presented did not constitute probable cause.^ 
A want of probable cause cannot be inferred from evidence of 
malice alone, since a person may maliciously prosecute another 
when there are ample grounds for the prosecution, when there 
is the strongest evidence against the party .^ 

§ 70. Malicious proeecntioii of civil actions. — If a per- 
son prosecutes a civil action against another maliciously, and 
without reasonable and probable cause, no action for damages can 
usually be supported against the prosecutor. A man may, if he 
fancies hja has a civil action against another, prosecute his claim, 
however false or unfounded it may be. The rules governing 
malicious prosecutions in the criminal courts do not apply.^ It 
cannot, however, be denied that in cases of extremely vexatious 
suits, where special damage has been actually suffered, alleged, 
and shown, the action has been allowed.^ No action can gener- 
ally be maintained for improperly promoting a civil action in the 
name of a third person, unless maliciously, and without reason- 
able or probable cause.® 

obtained before making the arrest or instituting the proceedings is a defense, if 
the party acted upon it bona fide. (Snow v, AUen, 1 Stark. 602; Kimmel v. Henry, 
(>4 111. 505; Ravenga v. Mackintosh, 2 Barn. & C. 603; Hewlett v. Cruchley, 5 
Taunt. 277; Cooper r. Utterbach, 37 Md. 282; Walter v. Sample, 25 Pa. 275.) 

1 Byne i*. Moore, 5 Taunt. 187. 

2 Snow V. Allen, 1 Stark. 502. 

« Boyd V. Cross, 35 Md. 194; Turner v. Ambler, 10 Q. B. 252; WiUiams v. Tay- 
lor, 6 Bing. 183; Skidmore v. Bricker,77 111. 104; Krug v. Ward, Ibid. 603; Heyne 
t'. Blair, 62 N. Y. 19. 

* Beauchamp v. Croft, Keilw. 26; Potts v. Imlay, 1 South. 330; Bay r. Law, 

I Pet. C. C. 207; Mayer v. Walter, 64 Pa. 283; Kramer ». Stock, 10 Watts, 115. 

6 Saville v. Roberts, 1 Ld. Raym. 374; 1 Salk. 13. See Thomas v. Rouse, 2 Brev. 
75; Cloasen v. Staples, 42 Vt. 209: Whipple v. Fuller, 11 Conn. 581; Van Duzer v. 
Ldnderman, 10 Johns. 106; Pangbum r. Bull, 1 Wend. 345; Marbourg v. Smith, 

II Kans. 554; Cox v. Taylor's Adm. 10 B. Monr. 17. 

<* Flight V. Leman, 4 Q. B. 883. It has been held that an action wiU lie for the 


§ 71. Defendant's proof. — In actions for malicious prose- 
cution the defendant may show that he acted honajide^ and had 
reasonable ground for believing that the facts within his knowl- 
edge constituted the offense charged. Or, in other words, he 
may show the absence of malice, and the existence of probable 
caiise.^ In order to show bona fides it is competent id prove 
any communication that giay have been made to him prior to 
the commission of the grievance, to show the impression made 
on his mind, and the materials he had before him in forming an 
opinion. So, where the cause of action constituted in making a 
complaint against the defendant on a charge of perjury, the de- 
fendant may testify that at the time of making the complaint he 
believed that the evidence given by the plaintiff was material, 
and that he was guilty of the offense charged. The defendant 
may also show the threats of the plaintiff to commit the offense 
of which he was charged ; ^ or admissions of the plaintiff that 
there was probable cause, and the defendant was not actuated 
by malice ; ^ and general repute as to similar guilty acts on the 
part of the plaintiff.^ 

malicious prosecution of suits in bankruptcy (Chapman v. Pickersgill, 2 Wils. 
liS; Farley v. Danks, 4 El. & B. 493; Whitworth v. Hall, 2 Barn. & Adol. 695); 
and so in cases of arrest in civU actions (Collins v. Hayte, 60 111. 337; Burhaus 
v. Sanford, 19 Wend. 417; Watkins r. Baird, 6 Mass. 506; Austin v. Debnam, 3 
Bam. & C. 139; Sinclair v. Eldred, 4 Taunt. 7); and so in some cases of attach- 
ment of property, if the attachment was taken out maliciously (Holliday v. 
Sterling, 62 Mo. 321; Fortmanv. Bottler, 8 Ohio, (N. S.) 548; Tomlinson t7. War- 
Der, 9 Ohio, 104; Nelson v, Danielson, 82 111. 645; Hayden v. Shed, 11 Mass. 500; 
Lindsay v. Lamed, 17 Mass. 190; Pierce v, Thompson, 6 Pick. 193; McCuUoagh 
V. Grishobber, 4 Watts & S. 201; Walser v. Thies, 56 Mo. 89; Spengler v. Davy, 
15Grat. 381; FuUenwider r. Mc Williams, 7 Bush, 389); and in proceedings to 
have a party declared insane, if they are unfounded and malicious. (Lockenour 
V. Sides, 67 Ind. 360.) 

^ Weston 17. Beeman, 27 Law J. Ex. 57; Turner v. Ambler, 10 Q. B. 260; McKown 
V. Hunter, 30 N. T. 626; McLaren v. Birdsong, 24 6a. 266; Barron v. Mason, 31 
Vt. 189; Lyon v. Hancock, 36 Cal. 372; White v. Tucker, 16 Ohio St. 468; Ammer- 
man v. Crosby, 26 Ind. 451; Thomas v. Bussel, 9 Ex. 764. 

2 Goggans v, Monroe, 31 Ga. 331. 

3 Wade V. Walden, 23 111. 425. 

* Barron r. Mason, 31 Vt. 189. See Gregory i-. Thomas, 2 Bibb, 286. 





§ 72. Injuries to property. 

§ 73. Injuries to personal property arising from necessity. 

^ § 74. Conversion of goods, etc. 

§ 75. Limited interference with chattels. 

§ 76. Chattels found. 

§ 77. Chattels received as .security. 

§ 78. Injuries to animals. 

§ 79. Hitching horses. 

§ 72. Injuries to property. — Having considered in the pre- 
ceding chapters the various injuries to the person, the liberty, 
the health, and the reputation of individuals, with some notice 
of those invasions of the relative rights of members of the 
community for which the law provides no remedy, it will now 
be our purpose to consider those injuries to property which are 
in the same unfortunate category. We shall discuss, first, the 
injuries to personal property, including the conversion of stocks 
and shares in incorporated companies; and secondly, injuries 
to real property, including general trespasses on real property 
at common law, injuries from mining operations, and injuries to 
water, surface or subterranean, and to water-courses, natural 
and artificial. 

§ 73. Injuries to personal property arising from neces- 
sity. — ^n an action of trespass brought for a casket and one 
hundred and thirteen pounds, taken and carried away, it ap- 
pears that a ferry-man took forty-seven passengers into his 
barge and the plaintiff was one, and the barge being upon the 
water a tempest arose and a strong wind, so that the barge and 
all the passengers were in danger of sinking, and a hogshead of 
wine and other ponderous things had not been cast out, for the 
safety of the passengers. It was concluded by the whole court 
that in case of necessity for the saving of the lives of the paa- 


sengers, it was lawful for the defendant, being a passenger, to 
cast the casket of the plaintiff out of the barge, with the other 
things in it, levandi causa. The owners, however, in 8uch a 
case, might have had a remedy against the ferry-man for sur- 
charging his craft. But if there was no surcharge, but the 
danger accrued only by the act of God, as by tempest, there 
being no fault in the owner of the vessel, " every one ought to 
bear his loss for the safeguard and life of a man," as in the case 
of tearing down a house to prevent the spread of a fire, etc.^ 
A person erected a mill-dam, part upon his own land and part 
upon the land adjoining. The owner of the adjacent land 
pulled down the dam upon his land, by which act the whole 
dam fell down and the water ran out. The act in^as held justi- 
fiable. And the same principle was applied to a wall erected 
upon one's own land and the land of his neighbor, and the lat- 
ter pulls down the wall upon his land, and in consequence the 
whole falls. This is held lawful.^ 

§ 74. Conversion of goods, etc. — A broker who, acting only^ 
as such, negotiates a bargain of purchase and sale, and passes 
a delivery order, is not thereby guilty of a conversion, so as to 
be liable in an action of trover ; and in the case of a simple 
asportation by him, without reference or intention as to whose 
was the property in the goods, is likewise not a conversion.^ So 
a mere sale of goods by a sheriff who has seized them and sold 
them bona jide^ and without notice, is not a conversion.^ Al- 
though conversion has been defined to be the exercising of do- 
minion over property inconsistent with the title of the owner,, 
yet justice, expediency, and public policy have introduced many 
exceptions or qualifications to the doctrine. A carrier who 
delivers a quantity of merchandise to one who receives it as 
owner, and a packer who packs and prepares for shipment and 
actually ships and consigns goods, exercise dominion adversely 
to, and inconsistent with, the rights of the true owner ; yet for 
this merely they are not liable as for conversion. In a carefully 

1 Mouse's Case, 12 Bep. 63; Dyer, 36. 

2 Wigford V. GiU, Cro. Eliz. 269. 

« Fowler v. Hollins, L. R. 7 Q. B. 616. 

* Lancashire Wagon Co. v. Fitzhugh, 6 Hurl. & N. 602. As to what is suffi- 
cient conversion, see Wilbraham v. Snow, 2 Wins. Saund. 47d. 


considered case in England in the Exchequer Chamber, in 1872, 
it appeared that the plaintiffs, who were merchants in Liverpool, 
sued the defendants, who were cotton brokers in the same 
place, to recover the value of thirteen bales of cotton. The 
cotton had been previously bought fraudulently by another 
broker from the plaintiffs' brokers. The defendants bought the 
same cotton from the principal of that other broker, without 
any notice of any fraud, and obtained his signature to a delivery 
order for it, and took delivery of it, and conveyed it to a rail- 
way station, whence it was forwarded to a mill, and there spun 
into yarn. The plaintiffs then demanded the cotton of the de- 
fendants. The defendants acted only as brokers and agents pi 
the owners o^ the mill. The question was whether the defend- 
ants had been guilty of a conversion, so as to authorize the 
maintenance of an action of trover. The legal nature and 
character of a broker was considered at length. As the de- 
fendants were regarded merely as agents for the mill-owners, 
they were held not to be subject to the action.^ 

§ 75. Limited interference with chattels. — Where rent 
was due from a vendor of the plaintiff to defendant, and the 
plaintiff was in actual possession, but the defendant, who was 
landlord of the house in which the goods were, said : " Rent 
is due to me, and before that rent is paid I will not allow these 
goods to be removed," this was held no conversion. A limited 
interference with the plaintiff's property, where plaintiff is in 
possession, does not constitute conversion.^ And if a man finds 
stray cattle in his field he is not bound to impound them or re- 
tain them for the owner, but may drive them off into the high- 
way without being guilty of a conversion.^ A plaintiff carried 
on the business of a mast, oar, and block-maker. The evidence 
showed that certain pieces of timber or spars used for making 
bowsprits, and belonging to the plaintiff, being on the defend- 
ant's land, he caused them to be removed ; and, upon the timber 

1 Fowler v. Hollins, L. R. 7 Q. B. 616. The judj^es, however, were not unani- 

2 England v. Cowley, Law R. 8 Ex. 126; Boobierr. Boobier,. 39 Me. 406; PoUey 
V. Lenox Iron Works, 2 Allen, 184; Plattner v. Johnson, 26 Miss. 142; Herron v. 
Hughes, 26 Cal. 555. See Guthrie r. Jones, 108 Mass. 191 ; Crockett v. Beatty, 8 
Humph. 20; Tray lor v. Horrall, 4 Blackf. 317. 

s Stevens v. Curtis, 18 Pick. 227; Wilson v. McLaughlin, 107 Mass. 587. 


being again placed there, and becoming imbedded in the soil, 
the defendant directed his workmen to dig a saw-pit in his land, 
and in so doing they cut through the timber, leaving the pieces 
there, and some of them were afterward carried away by the 
tides of the river, which at high water flowed over the land, the 
other part remaining imbedded in the soil. This was considered 
no evidence of a conversion ; there being no intention on the 
part of the plaintiff to take to himself the property, or deprive 
the plaintiff of it.^ Where a cow, running at large, got acci- 
dentally and unknown to defendants in the latter's drove and 
was driven off with the drove, this was considered no conver- 
sion, as she was delivered up on the first notice that she was 
plaintiff's property .^ In order to constitute a conversion there 
must be an intention of the defendant to take to himself the 
property in the goods, or to deprive the plaintiff of it. A 
mere depositary or naked bailee cannot be guilty of a conversion 
by merely receiving the goods and then returning them to the 
depositor ; otherwise, an innkeeper, who receives in his stable a 
stolen horse in .charge of a guest, and permits the latter to take 
him away again, would be guilty of a conversion of the horse 
to his own use. Especially where there was no intention to 
conceal the property from the true owner, the bailee cannot be 
sued in trover.^ 

§ 76. Chattels found. — The law does not compel a man 
who finds a thing to keep it safely, as if one finds a garment 
and suffers it to be moth-eaten, or*finds a horse and neglects to 
give it sustenance ; but if a man finds a thing and uses it, he is 
answerable for conversion, and so if he purposely misuses it ; 
but'for mere negligent keeping he is not answerable.* 

1 Simmons v. Lillystone, 8 Ex. 431. See Byrne v. Stout, 15 111. 180; Sanderson 
V. Haverstick, 8 Pa. 294. 

2 Wellington t;. Wentworth, 8 Met. 648; Van Valkenburg v. Thayer, 57 Barb. 
196. See Hills v. Snell, 104 Mass. 173; Lee v. McKay, 3 Ired. 29. Contra, Piatt 
r. Tuttle, 23 Conn. 233. 

» Loring v. Mnlcahy, 3 Allen, 575; PoUey v. Lenox Iron Works, 2 Allen, 182. 

^Mulgraver. Ogden, Cro. Eliz. 219; Tinker v. Morrill, 39 Vt. 477; Conner v. 
Allen, 33 Ala. 515; Bromley v. Coxwell, 2 Bos. & P. 438; Railroad Co. v. Kidd, 
7 Dana, 252; Nutt v. Wheeler, 30 Vt. 436; Abbott v. KirabaU, 19 Vt. 558; Jones 
V. Allen, 1 Head. 626; Ragsdale v. Williams, 8 Ired. 498; Aukim v. Woodward, 
6 Whart. 571. 


§ 77. Chattels received as security. — In trover for the 
conversion of a gun, the. defendants admitted it was the prop- 
erty of the plaintiffs.. It was proved that one J S, being in- 
debted to the defendants, delivered the gun to them as security 
for the debt, and that afterward the plaintiffs demanded the 
gun of one of the defendants. But the plaintiffs did not rely 
upon the demand as evidence of the conversion, as the gun, be- 
fore the demand, had been taken away by J S with the de- 
fendants' consent and sold to another party. The evidence 
relied on was, that the defendants consented to this sale. There 
was no proof that the defendants had any knowledge of plaint- 
iffs' title or the want of title of J S. The court held, on ap- 
peal, that receiving the gun from the person who had the 
possession and restoring it to him and taking other security, was 
not a tortious act, and did not amount to conversion.^ 

§ 78. Injuries to animals. — In trespass for killing u mas- 
tiff belonging to plaintiff, the defendant pleaded that he was 
keeper of a warren, and that the dog was in the habit of killing 
rabbits in the warren, and the justification was held good, Pop- 
ham remarking that ^^the common use of England is to kill 
dogs and cats in all warrens, as well as any vermin, which 
shows that the law hath been always taken to be that they may 
well kill them ; so the justification is good." ^ So where two 
greyhounds chased a deer in defendant's park, and there killed 
her, wherefore he killed the hounds, to prevent more mischief 
by them, the act was held justifiable.^ So a plea that the dog 
killed by defendant was a fierce dog, and often bit men and cat- 
tle, of which the defendant had notice — that the dog came into 
defendant's yard against his will, so that he was afraid to go out 
of his house, of which the plaintiff had notice, and the defend- 
ant desired him to keep his dog out of the yard, which the 
plaintiff neglecting or refusing to do, the defendant shot the 
dog in the yard, was held a good plea.* And in New York it 

■ Leonard v. Tidd, 3 Met. Mass. 6; Nelson v, Iverson, 17 Ala. 216; Hill v. 
Hayes, 38 Conn. 532; Parker v, Lombard, 100 Mass. 400. 

3 Wadburst v. Damane, Cro. Jac. 45. But see Vere v. Lord Cawdor, 11 East, 
668. See King v. Rose, Freem. 347; Morris u. Nugent, 7 Car. & P. 572. 

" Harrington v. Turner, 3 Levinz, 28. 

* Keck I'. Halstead, 3 Lutwyche, 481. 


was held that where a dog was on the land of the defendant, in 
the act of destroying a fowl, the defendant was justified in kill- 
ing him, the same as if he was chasing sheep, deer, calves, or 
other useful animals : and it was further held that the fowl be- 
ing on the land of tne defendant was enough, without showing 
property in the fowl.^ And where it was shown that a dog was 
generally a dangerous and unruly animal, and his owner knew it, * 
yet permitted him to run at large, or kept him so negligently that 
he escaped from confinement, the defendant was held justified in 
killing him while he was running loose, especially as the animal 
had been bitten a few days before by a mad dog. This in itself 
w^as considered sufficient to justify any person in killing him.* 
Where a dog was in the constant habit of coming on defendant's 
premises and about his dwelling, both day and night, barking 
and howling, to the great annoyance and disturbance of the 
peace and quiet of the family, and the plaintiff was fully ad- 
vised of this propensity of the animal, and willfully neglected 
to confine him, and defendant, unable to remove the nuisance in 
any other way, killed him, the act was considered justifiable, 
and the owner could not recover. It was placed on the ground 
of nuisance, where the party might take the remedy into his 
own hands, like other common-law nuisances.* The act was con- 
sidered essential to the free and perfect enjoyment by the defend- 
ants of their property, as well as to the protection and comfort 
of their families. It was alleged in a declaration that defend- 
^ ants were the owners of a sow and pigs which bit, damaged, 
mutilated, and mangled a certain cow and calf of the plaintiff, 
while the cow was in the act of calving, so that the cow and 
calf both died, to the plaintiff's damage, etc. The evidence 
sustained these facts, but there was no allegation nor any evi- 
dence given on the trial that swine possess natural propensities 
which lead them instinctively to attack or destroy animals in the 
condition of those of the plaintiff. Nor was there any allega- 

1 Leonard v. Wilkins, 9 Johns. 233. See, also, Canefox v. Crenshaw, 24 Mo. 

199; Morse v. Nixon, ST Jones, (N. C.) 35. 

'^ Putnam r. Payne, 13 Johns. 312. See, also, Maxwell v, Palmerton, 21 Wend. 
407 ; Dnnlap w. Snyder, 17 Barb. 661 ; Russell v. Barrow, 7 Porter, (Ala. ) 106. See 
Woolf V. Chalker, 31 Conn. 128; Dodgon v. Mock, 4 Dev. & Bat. 146. 

» Brill 17. Flagler, 23 Wend. 354; Viner Abr. Tit. Nuisance, G. & W. 3 Blackst. 
Com. 6; Street v. Ingwell, Selw, N. P. 851. See, also, Brown ». Carpenter, 26 Vt. 
638; Woolf v. Chalker, 81 Conn. 129. 

D. A. I.— 7. 


tion or evidence that the defendant previously knew or had 
notice that their swine were accustomed to do such or similar 
mischief, or that the swine broke and entered the plaintiff's 
close, and there committed the mischief. There was no scienter 
alleged or proved. Under these circumstances the plaintiff was 
held not properly entitled to judgment.* 

§ 79. Hitching horses. — Travelers have no right to hitch 
horses to shade-trees. Most horses have a propensity to gnaw 
whatever they are hitched to. When, therefore, the owner of 
a shade-tree finds a horse hitched to it, he may immediately re- 
move him to a place of safety ; and if it is done carefully and 
considerately, it is not a trespass ; and if unavoidable damage 
results, it is damnum absque injuria. Where a defendant found 
a horse hitched to one of his shade-trees, he unhitched him and 
led him a few feet and hitched him to a post, set in the ground 
for the purpose of hitching horses to it. The horse afterward 
got loose in some way from the post, and ran away and broke 
the wagon. There was no evidence that the defendant did not 
use ordinary care in hitching the horse to the post, and be was 
not charged with negligence, but only trespass vi et armis in 
taking away the horse and buggy. The plaintiff was nonsuited.' 

1 Van Lenvin v. like, 1 N. Y. 516; S. C. 4 Denlo, 127. 

3 Oilman v. Emery, 64 Me. 160. See Young v. Vaughan, 1 Horst. 331. 

ChatUU annexed to realty. — If one, without license from the owner, enter and 
make permanent erections on land, he cannot remove what he has unlawfully 
atta<3hed (Kieman v. Hesse, 61 Gal. 694; Ewell on Fixtures, chap. 2. See Pen- 
nybacker v. McDougal, 48 Cal. 160); and if any one having a right to attach a 
fixture to the freehold, attach it so that it cannot be removed without serious 
Injury to the realty, he must lose it, but the injury must be substantial and not 
trifling. (Seeger v. Pettit, 77 Pa. 437: Avery v. Cheslyn, 3 Ad. & El. 76; Whitinj< 
V. Brastow, 4 Pick. 310.) These rules, of course, can be altered by special agree- 
ment. When a licensee has a right to remove fixtures, he will lose them unless 
he removes them within a reasonable time, to be governed by all the circum- 
stances, and so with a tenant at the expiration of his term, as to his remova- 
ble fixtures. (Antoni v. Belkap, 102 Mass. 193; Ombony v. Jones, 19 N. Y. 234; 
Sullivan v, Carberry, 67 Me. 631 ; Penton v. Robart, 2 East, 88; Weston v. Wood- 
cock, 7 Mees. & W. 14; Lyde v. Russell, 1 Bam. & Adol. 394; Conner v. Coffin, 
22 N. H. 638. See Davis t- . Eyton, 7 Bing. 154.) It must be understood, how- 
ever, that whUe a structure becomes realty if affixed by the owner of the land, 
it does not become a part of it when affixed by the tenant, because the difference 
in ownership will prevent the merger. The tenant is supposed to keep the 
ownership separate. This must necessarily be the modem doctrine. Whole 
cities grow up on leased land, and substantial structures for houses, shops, etc., 
remain the tenant's property, as between him and his landlord. (Cooley on 
Torts, 432, note 6. ) Laws are sometimes passed to compel a paramount claim-: 
ant, upon recovering realty, to tender the value of improvements affixed by the 
defendant as a condition of being put in possession. 




$ 80. Injtules snffered by purchasers of stock. 

§ 81. Technical breaches of trust. 

§ 82. Injuries suffered by equitable owners of stock — conversion by pledgee. 

§ 83. Sale of mining stock — fraudulent representation. 

§ 84. Stock stolen. 

§ 80. Injuries suflbred by purchaBers of stock. — ^The 
principle that certificates of stock in a corporation are mere 
evidences of the holder's title to a given share in the franchises 
and property of the corporation, and tfiat such certificates are 
not negotiable securities, in a commercial sense, results in the 
further proposition that if a corporation issues to an owner of 
shares of stock a certificate transferable on the books of the 
company by indorsement and surrender of the certificate, and 
he indorses the same and then loses it, and it comes into the 
hands of a hona fide purchaser for value, even such a purchaser 
acquires no right to the stock. This may present a case of ex- 
treme hardship, and an extreme case of damnum absque injuria. 
The loss to the purchaser is apparent, but there is no legal 
remedy. And so in a case in California a broker owned shares 
of the stock of the defendant, a corporation organized for mining 
purposes^ imd received a certificate in the following language : ^ 

''Twenty shares. — No. 7405. — Meadow Valley Mining 
CoMPANT.— Incorporated May 15th, 1869.— Capital |6,000,- 
000. — 60,000 shares — $100 each. — San Francisco, November 
80th, 1872. This certifies that H. Schmeidell, trustee, is the 
owner of twenty (20) shares of the capital stock of the Meadow 
Valley Mining Company, transferable on the books of the com- 
pany by indorsement hereon and surrender of this certificate. 
T. W. Colbum, Secretary. Aug. J. Bowie, Jr., Vice-Presi- 

1 Sherwood v. Meadow Valley Mining Company, 50 Cal. 412. 


(lent. — Location of works: Lincoln County, Nevada. — ^Indorsed: 
Henry Schmeidell, Trustee. Witness : N. K. Masten." 

And it further appeared that the stock was entered on 
the books of the company in the name of "Henry Schmei- 
dell, trustee." On said 30th of November, Schmeidell sold 
twenty shares of stock to one Levy, and indorsed* the cer- 
tificate thus : " H. Schmeidell, trustee," and delivered it to 
him; but no change was made on the books of the com- 
pany, nor did Levy inform the company of his purchase. 
On the 7th day of April, 1873, Levy lost the certificate. 
On the 8th day of April, 1873, he notified the corporation 
of his loss, and, having indemnified it, on the 19th of May 
following, the company gave him a new certificate, a copy of 
the old one. On the 7th of April, 1873, the plaintiff, who was 
also a stock-broker, purchased, in the usual course of business, 
twenty shares of the stock of said corporation, and H. Morri- 
son, who sold the same, delivered him the certificate which 
Levy had lost. Sherwood paid value, and did not know of 
Levy's loss. On the 2nd day of July, 1873, Sherwood, still igno- 
rant that the certificate was not good, and of Levy's loss, pre- 
sented it to the corporation, and demanded a new certificate to be 
issued to him. The company refused. By the custom of brokers 
in San Francisco, certificates drawn as this was, and indorsed,, 
pass from hand to hand by mere delivery, without any transfer 
on the books of the company. The application was for a 
writ of mandate to compel the corporation to issue a new cer- 
tificate to the plaintiff. The lower court refused to issue the 
writ, and the plaintiff appealed. The appellate court said: 
"In Atkins v. Gamble, 42 Cal. 99, we held that certificates 
of stock in a corporation are not negotiable securities, in a com- 
mercial sense, but are mere muniments and evidences of the 
holder's title to a giyen share in the property and franchises of 
the corporation of which he is a member. We do not think 
it necessary to again go over the reasoning, or engage in a re- 
view of the authorities by which the conclusion is maintained. 
Mr. Parsons, in a note to the sixth edition of his work on Con- 
tracts, (Vol. 1, p. 290) after a somewhat extended citation of 
the authorities upon the general subject, says : ^ The result 
would seem to be that all corporation bonds and government 


stocks, which pass by delivery, or indorsement with delivery, 
are negotiable ; but that certificates of stock in a corporation 
are not.' 

" The question underwent an exhaustive consideration by the 
Court of Appeals of the State of New York, in the year 1866, 
in Mechanics' Bank v. N. Y. & N. H. R. R. Co. 3 Kernan, 
599, and the opinion of the court, delivered by Justice Com- 
stock, contains a masterly exposition of the principles of law, 
and a citation and comparison of the judicial decisions appli- 
cable to the question. We are of opinion that, upon the agreed 
facts of the case, the judgment of the court below was correctly 
entered in favor of the defendants," and the judgment was 

^ It has been decided in another case in California that if the owner of shares 
of the capital stock of a mining corporation organized under the la^ of the 
State, causes them to be transferred on the books of the company to another, to 
whom a certiiicate is issued in due form, and tliat other thereupon indorses the 
certificate in blank and delivers to the original owner, from whom, while so in- 
dorsed in blank, and the indorser in blank still standing on the books of the 
company as the registered owner, the certificate is subsequently stolen by the 
indorser in blank, who puts it on the market, and it is purchased in the usual 
course of business in good faith, and without notice by a third person, the pur- 
chaser acquires a valid title to the stock as against the original owner. What- 
ever may have been the rights of the bonajide purchaser who was not a party to 
the action, another element entered into the case. The suit was by the original 
owner against the corporation, not the purchaser, and the record showed that, 
discovering his loss after these shares were sold, and before any transfer on the 
books was claimed by any other party, plaintiff requested defendant to issue to 
him the corresponding certificates of said stock, which defendant refused, but 
issued the certificates to other parties who had purchased the stolen certificates. 
Plaintiff, also, at the same time, notified defendant of the theft. Upon the trial 
of the cause, a jury being waived, the court rendered judgment for plaintiff for 
the value of the stock, $1,200, with interest and costs, from which defendant 
appealed. But notwithstanding these facts the judgment was reversed and the 
oanse remanded. It is proper to add that the appellate court but about a year 
previously had decided the other way in the same case. The ground of chan^ 
ing their opinion on rehearing was stated to be that it had been decided that a 
purchaser in goo4 faith, and without notice under an attachment levied on stock 
in a corporation, as the property of the registered owner, acquired a good title 
as against a prior pledgee or purchaser of the certificate; and a purchaser at 
private sale in good faith, and without notice, in the usual course of business, of 
a certificate issued to the registered owner, and duly indorsed by him, ought, 
they thought, to stand upon as favorable a footing. (Winter v. Belmont Mining 
Company — Supreme Court of California, Jan. ISth, 1879— overruling decision in 
Same Case, Oct. 9th, 1877— Pacific Law Reporter, Jan. 20th, 1879— both, decisions 
unreported. See, also, Sherwood v. Meadow Valley Mining Company, 60 CaL 
412; Thompson v. Toland, 48 Cal. 112; Brewster r. Sime, 42 Cal. 139; People v. 
Elmore, 35 Cal. 655; Naglee r. Pacific Wharf Co. 20 Cal. 533; Brewster v. Sime, 



42 Gal. 139.) The case referred to by the court in their last opinion in the case 
of Winter v. Belmont Mining Company was the case of Weston v. Bear River 
and Auburn Water and Mining Company, 6 Cal. 425. In that case the court 
passed upon the provisions of the California Corporation Acts of 1860 and 1853, 
substantially the same as sec. 324 of the Civil Code of that State, which provides 
that when the capital stock of a corporation is divided into shares, and certifi- 
cates therefor are issued, such shares of stock are personal property, " and may 
be transferred by indorsement by the signature of the proprietor or his attorney 
or legal representative, and delivery of the certificate ; but such transfer is not 
valid except between the parties thereto until the same is so entered on the 
books of the corporation as to show the names of the parties by and to whom 
transferred, the number or designation of the shares, and the date of the trans- 
fer." In construing similar provisions in the Weston case the court said: ** A 
party who purchases at sheriff's sale stocks of an incorporation, knowing that 
the certificates of such stock have been previously hypothecated, is chargeable 
with notice of such fact, and tAkes subject to the claim of the pledgee. Neither 
the incorporation law of 1850 or 1863 was intended to cover a case of this kind, but 
they apply only to transfers and purchases in good faith without notice." It was 
therefore decided that the plaintiff was not entitled to equitable relief, and the 
judgment was reversed. The court reached this conclusion on the theory that 
the statutes regulating the transfer of certificates of stock in a private corpora- 
tion imparted to the certificates, as between third persons, the character of nego- 
tiable iiTstrumenta. The effect of the decision was considered to be that if the 
certificates had been hypothecated before the attachment lien accrued, and if 
the purchaser at execution sale took with notice of the prior hypothecation, he 
acquired no rights as against the pledgee. The reverse of the proposition was 
considered to be true, and if he had purchased without notice, his title would 
have prevailed as against the pledgee. In other words, that the statute had 
placed the certificates in so far on the footing of negotiable instruments that if 
they had been hypothecated before the attachment lien accrued, nevertheless, 
if the purchaser at the sheriff's sale, to enforce the lien, had purchased without 
notice of the hypothecation, he would have acquired a valid title as against the 
pledgee. (Weston v. Bear River and Auburn W. & M. Co. 6 Cal. 425; S. C. 5 
Cal. 185; Naglee v. Pacific Wharf Co. 20 Cal. 633; People v. Elmore, 35 Cal. 655.) 
In the Weston the action was a bill in equity, alleging that the plaintiff 
purchased at execution sale certain shares of the capital stock of the defendant 
corporation which stood on the books of the corporation in the name of Lovell, 
the defendant in the execution. It was further alleged that the defendant Swift 
had possession of some, and the defendants Reese & Buckingham of others of 
the certificates, which they refused to surrender, and the prayer of the complaint 
was for a decree to compel the surrender of the certificates, and that the corpor- 
ation issue new certificates to the plaintiff. It appeared from the answers that 
the certificates held by Swift had been hypothecated to him, and those held by 
Reese & Buckingham had been sold to them before any lien had attached 
thereon in the suit in which the execution issued under which the plaintiff pur* 
chased, and that when he purchased he had notice of such sale and hypotheca- 
tion: and further, that the certificates held by Reese & Buckingham had been 
surrendered, and new certificates issued to them. The court below found the 
facts to be as alleged in the complaint and answers, and entered a decree for the 
plaintiff, which was reversed on appeal. (Weston v. Bear River and Auburn 
W. & M. Co. 6 Cal. 425; S. C. 5 Cal. 185; People v. Elmore, 35 Cal. 655; Naglee v. 
Company, 20 Cal. 533.) In tlie last opinion in Winter v. Belmont Mining Com- 
pany the court, without referring to its former opinion in the same case, say 
that in the case of Sherwood t\ Meadow Valley Mining Company, cited in that 


§ 81. Technical breaches of trust. — The doctrine of 
damnum "ahsqiie injuria is applied to cases of technical wrongs 
and technical breaches of trust, as in the case of conversion or 

opinion, and reviewed in the text of this chapter, '^onr attention was not called 
to the foregoing decisions, nor to the statute regulating the transfer of stocks in 
private corporations. Without referring to these decisions, or to the statute on 
which they were founded, counsel in the Sherwood case discussed the sole prop- 
osition whether a certificate of this character, on general principles of commer- 
cial law, was negotiable in the sense in which bills of exchange and other 
similar instruments are negotiable, and we held they were not, which was the 
only point decided in that case." In the first case of Winter v. Belmont Mining 
Company (Oct. 9th, 1877 — unreported) the court stated the case as follows: 
The plaintiff, being the owner of certain shares of the capital stock of the 
defendant, cau.Hed them to be transferred upo'n the books of the company to 
'* W. R. Maurice, Trustee," and certificates were issued accordingly, and after- 
wards Maurice indorsed them in blank and delivered them to the plaintiff. 
They were subsequently stolen from the plaintiff by Maurice, and were by him 
sold and delivered to third persons, Vho purchased the .same without notice that 
Maurice was not the owner thereof. Before the stock was transferred on the 
books of the corporation to the purchasers from Maurice, the plaintiff notified 
the corporation of his loss of the stock, and demanded the issue to him of new 
certificates in the place of those which had been destroyed, and tendered a bond 
of indemnity, but the corporation refused to issue new certificates to tlie plaint- 
iff. Upon this state of facts the court said that " in Brewster r. Sime, 42 Cal. 
139, and Thompson v. Toland, 48 Cal. S)9, it was held that the owners of the stock 
must bear the loss because they had placed the legal title and possession of the 
certificates in a third person, and thus enabled liim to appear to be the real 
owner of the stock, and thereby to practice a fraud upon innocent purchasers. 
In this case neither the title to the stock nor the possession of the certificates 
was intrusted to Maurice, but the plaintiff held the certificates as he would have 
held those issued to and indorsed in blank by any other person; and a failure on 
his part to change the blank to a special indorsement, or to cause the stock to 
be transferred on the books of the company, does not constitute such negligence 
as will require him to bear the loss of the stock. *The case comes within the 
principles announced in Sherwood r. Meadow Valley Mining Company, 50 Cal. 
412, that certificates of stock in a corporation are not negotiable in a commercial 
sense, and that the title to the stock cannot be transferred by a person who 
fraudulently obtains possession of the certificates from the owner." Independ- 
ent of local statute, the author has allowed the case of Sherwood v. Meadow 
Valley Mining Company, 50 Cal. 412, to remain in the text as the general law of 
the subject-matter, especially as, to use the language of the court in that case, 
" Mr. Parsons, in a note to the sixth edition of his work on Contracts, (vol. 1, p. 
290) after a somewhat extended citation of the authorities upon the general sub- 
ject, says: * The result would seem to be that all corporation bonds and govern- 
ment stocks which pass by delivery, or indorsement with delivery, are negotia- 
ble; but that certificates of stock in a corporation are not.' The question 
underwent an exhaustive consideration by the Court of Appeals of the State of 
New York, in the year 1856, in Mechanics' Bank v. N. Y. & N, H. R. R. Co. 3 
Kern. 509, and the opinion of the court, delivered by Justice Comstock, contains 
a masterly exposition of the principles of law, and a citation and comparison of 
the judicial decisions applicable to the question." (See, also, Bercich r. Marye, 
9Nev. 312.) 


sale of identical shares of mining stock. Shares of stock in a 
corporation stand upon a different footing from other personal 
property, as regards the right to the recovery of the specific 
property, because they are mere evidences of interest in the 
business of the corporation ; and if all the shares are of equal 
value, there can be no reason for preferring one share to another. 
And so, where a bailee of mining stock is at all times ready, 
able, and willing to transfer to the bailor the same number of 
shares of similar stock of equal value, and of the same com- 
pany, the sale or conversion of the identical shares pledged 
only constitutes a technical breach of trust, and presents a case 
of damnum absque injuria in the sense that there is a technical 
wrong, but no actual injury, and nothing for which the law 
need afford any remedy. This doctrine is illustrated in a care- 
fully considered case in California.* In that case it appeared 
that as to some of the shares in question, the only testimony 
concerning the sale of them by the defendant was to the effect 
that the defendant, (the bailee) being the owner in his own 
right of a large amount of the stock of the company, ordered 
his broker to sell a portion of it ; that the broker contracted to 
sell twenty or more shares, and, in performing the contract of 
sale, the defendant, who was president of the company, deliv- 
ered to the purchaser ten shares of the plaintiff's stock ; that in 
so dealino^ with these shares the defendant delivered them as 
his own, and not as the property of the plaintiff ; that the sale 
was intended bv the defendant to be of his own stocks and not 
the plaintiff's ; and that the defendant, during the whole time, 
held in his own name more than enough of the stock of the 
company to replace the ten shares of the plaintiff. 

The argument of the counsel for the plaintiff on this branch 
of the case was, that inasmuch as the defendant sold these ten 
shares without the authority of the plaintiff, and against his 
orders, it was a wrongful conversion of the stock by the de- 
fendant to his own use ; that it was optional with the plaintiff 
whether he would repudiate the sale and hold the defendant for 
the market value of the stock, or, waiving the wrongful conver- 
sion, ratify the sale and demand the proceeds. Upon these 

1 Atkins V. Gamble, 42 Cal. 86. It would perliaps be more correct to flay that 
it was injuria sine damnOj but the court uses the terms as convertible. 


propositions the court said : ^^ There can be no doubt as to the 
general proposition that, if the bailee of personal property sell 
it in violation of his authority, the owner may ratify the trans- 
action and demand the proceeds of the sale. If A intrust to B 
a steamboat, for sale at a limited price, and if B, in violation of 
his duty, sell it for a less price, A may acquiesce in the sale and 
demand the proceeds. This proposition needs no argument or 
citation of authorities to sustain it. It would not be at the 
option of the baUee whether he would account for the proceeds 
or deliver another steamboat of equal value ; nor would it be 
any defense for him to say that he, at all times, had and held 
another steamboat of equal value, which he was ready to deliver 
in place of the first. If certificates of stock in mining corpora- 
tions are to be treated in this respect as other personal property, 
it is evident the defendant became liable to the plaintiff for the 
proceeds of the ten shares sold. But we think such certificates 
stand upon a different footing. Whilst stock in corporations is 
denominated personal property, and is subject to seizure and 
sale under execution, and whilst a particular certificate may be 
capable of complete identification, by its numbers or otherwise, 
the certificate is but the evidence that the holder of it is entitled 
to an undivided share in the assets and business of the corpora- 
tion. The stockholders are the joint owners of the franchise 
and property of the corporation, each being entitled to an undi- 
vided share thereof, and the only office of the certificate is to 
furnish the evidence of the quantum of interest held by the 
owner of the certificate. ' Certificates of stock are not securi- 
ties for money in any sense ; much less are they negotiable se- 
curities. They are simply the muniments and evidence of the 
holder's title to a given share in the property and franchises of 
the corporation of which he is a member.' (Mechanics' Bank 
V, New York & New Haven R. R. Co. 13 N. Y. R. 626.) If 
a firm, doing business as an ordinary partnership, issue certifi- 
cates to each of its members, specifying the interests of the 
respective copartners, such certificates would have no intrinsic 
value, except as evidence of the quantum of interest of each 
copartner. The joint interest of the copartner in the property 
and business of the firm is the substance, of the existence of 
which the certificate is but the evidence. If, for example. 


there be three copartners, each owning an undivided interest 
of one-third, there Is no appreciable difference between the 
respective interests. They are in all respects precisely similar, 
and each several interest is an exact duplicate of the others. 
The same principle is applicable to corporations. The holder of 
ten shares of stock stands precisely upon the same footing as any 
other holder of ten shares. Their interests are precisely similar/ 
and of the same value, and each holds but an undivided interest 
in the common property. This proposition is not new in this 
court, and is substantially decided in Hawley v, Brummagim, 
83 Cal. 894 ; Hardenburgh v. Bacon, 83 Cal. 856. 

" The general rule is, as we have stated, that the owner of per- 
sonal property which has been wrongfully converted is entitled 
to recover his specific property or its value, and cannot be com- 
pelled to accej)t other property of the same kind and of equal 
value, in lieu of that which was converted. The reason of the 
rule is obvious. The owner may have special reasons for desiring 
to retain that specific chattel ; and there may be reasons why 
he attached a peculiar value to it beyond the value of other 
chattels of a precisely similar kind. If his desire in this re- 
spect be the result of mere caprice, he is entitled to be gratified 
in the exercise of it. Visible, tangible chattels may have se- 
cret defects which no vigilance could detect. If two visible 
objects be apparently precisely similar, one may have infirmities 
not discoverable on inspection, which would impair or destroy 
its value. Hence the owner of such chattel cannot be compelled 
to accept in lieu of it another which appears to be precisely sim- 
ilar and of equal value. He cannot be required to take the 
risk of secret defects in the substituted article. Other consid- 
erations, also, affect the general rule. If a favorite horse, a pet 
dog, or a family picture be converted by a wrong-doer, he could 
not escape responsibility by offering another horse, dog, or pic- 
ture, even of greater value. 

^^ But we think the reason of the rule ceases when applied to 
stocks. It is impossible that any sane person should have cen- 
tered his affections upon a particular stock certificate, or that 
any violence could be done to his feelings by requiring him to 
accept another certificate, of precisely similar cjiaracter, in lieu 
of it. His own certificate was only the evidence that he owned 


an undivided interest in the capital and business of the corpora- 
tion. Another certificate of the same kind, for the same amount 
of stock, would entitle him to precisely the same rights as the 
former certificate. Each would be a precise equivalent of the 
other, and it is certain he could suffer no pecuniary loss by the 
transaction ; whilst the nature of the property, or rather of his 
interest in it, forbids the idea that it could be the object of per- 
sonal attachment, or have a peculiar value in his estimation as 
contradistinguished from any other equal number of shares in 
the same company. For these reasons, we think, a different 
rule should govern the conversion of a certificate of stock ; and 
if the wrongdoer was at all times ready and willing to transfer 
to the owner an equivalent number of similar shares in the same 
company, by a proper and valid certificate, it would present a 
case for nominal dama<Tes onlv." 

Cases apparently in conflict with these views rest upon differ- 
ent principles. Thus, Wilson v. Little, 2 Comst. 443, was an ac- 
tion to recover the value of fifty shares of New York and Erie 
Railroad stock, deposited with the defendant as collateral security 
to secure the payment of a promissory note, with authority to 
sell the stock on non-payment of the note. The defendant sold 
the stock before maturity of the note, and the plaintiff afterward 
tendered payment and demanded a return of the stock. It ap- 
pears that the company had two kinds of stock, for which it had 
issued certificates ; one termed the " consolidated," and the other 
the " converted," which had different values in the market, the 
former being the most valuable. The stock which was pledged 
was the "consolidated," and the defendant offered to return 
*' converted" stock in lieu of that which he sold. The court 
very properly held that the plaintiff was under no obligation to 
accept a different kind of stock from that which was pledged. 

In discussing this branch of the case, the court say : " The 
defendants were bound to restore the identical stock pledged." 
And in another part of the opinion : " Although the plaintiff 
was strictly entitled to a retransfer of the same shares which 
were pledged, it appears that his broker was willing to receive 
other stock of the same description and value," etc. In the 
first paragraph quoted we understand the court to refer to 
*' consolidated " as contradistinguished from converted stock ; 


but if it be conceded that in strict law the plaintiff was entitled 
to a re transfer of the same identical shares which were pledged, 
it by no means follows that he was entitled to any but nominal 
damages, if the defendant was at all times ready and wUling to 
transfer to him an equal number of shftres of the same kind of 
stock with that which was pledged. 

Brookman v. Rothschild, 8 Simmons, 6 Eng. Ch. 153, was a 
bill in chancery to set aside certain transactions in stocks on the 
ground of fraud. The defendant was the plaintiff^s agent, and 
rendered accounts showing large transactions in stocks for the 
plaintiff's account. It appeared on the trial that the stocks 
stood in the name of the defendant, and were never in any man- 
ner appropriated or set apart to the plaintiff. The court held 
that the stocks never became the property of the plaintiff, and 
he was therefore not liable for losses incurred by their sale. 

Seymour v. Wickoff, 6 Seld. 213, was an action to recover 
the value of a quantity of pork in barrels, left with the defend- 
ants as commission merchants, for sale, and which was sold at 
ten dollars per barrel ; but the plaintiff was not advised of the 
sale, and afterward, on discovering it, brought an action for the 
proceeds. The defense attempted to be set up was, that the 
pork in question was only a portion of a much larger quantity 
belonging to the defendant, or consigned to him by others, and 
which had the same inspection brand, and was stored in the 
same warehouse, by reason of which it had lost its identity, like 
wheat mixed in a bin, and that so long as the defendant had on 
hand an equal quantity of pork of the same brand, he might 
apply the plaintiff's ownership to that parcel, and sell it on his 
account. This defense was held to be insufficient, as it mani- 
festly was. But there is no analogy between pork in barrels, 
capable of complete identification, and having peculiar quali- 
ties, on which its value depends, and certificates of stock, hav- 
ing no value over other similar certificates of the same stock. 

In Ford v. Hopkins, 1 Salk. 283, the plaintiff had delivered 
certain lottery tickets to a goldsmith to collect the money due 
on them. The goldsmith, having received of the defendant 
other tickets in the same lottery, and given his note for them, 
took up his note by delivering the plaintiff 's tickets to the de- 
fendant. The court held that the goldsmith had no authority. 



except to receive the money due on the tickets, and had no 
power to sell them or exchange them for other tickets ; conse- 
quently no title passed to the defendant. 

Nourse v. Prime, 4 John. Ch. R. 496, and which was more 
fully considered in 7 John. Ch. R. 69, is, in some respects, very 
similar to the case of Atkins v. Gamble, in California. The 
defendants were stockbrokers, and had purchased for the plaint- 
iff 430 shares of United States Bank stock, and taken a trans- 
fer of the stock in their own names. The plaintiff, having be- 
come largely indebted to the defendants, executed his promis- 
sory note to them for the amount, and agreed that they should 
hold the bank stock as collateral security ; and the defendants 
thereupon executed and delivered to the plaintiff a writing, ac- 
knowledging tKat they held the stock as security for the note, 
and promising, on payment of the note, to "retransfer" the 
stock and account for the dividends ; but in case the note was 
not duly paid, the defendants were to be at liberty to sell the 
stock, accounting to the plaintiff for the surplus, if any. 

The defendants ultimately sold the stock at a depreciated 
price, which was not sufficient to pay the debt, and brought an 
action at law against the plaintiff for the deficiency. The 
plaintiff then filed this bill in equity, to enjoin the action at law, 
on the ground that the defendants were large operators in stocks, 
and had mingled his stock with their own and other stocks, 
which they held in trust, in such manner that they could not be 
distinguished ; that it was the duty of the defendants to have 
set apart the plaintiff's shares in such manner that they could 
be identified, and not having done so, they were liable for the 
highest price lit which the stock could have been sold. 

The defendants relied for their defense on the fact that the 
plaintiff had never requested them to set apart any particular 
430 shares, and that the custom was for brokers to keep all 
stocks of which they had control in their own names, not dis- 
tinguishing one parcel from another ; and that they at all times 
had enough of the stock of the United States Bank under their 
control to have replaced the plaintiff's stock, and were at all 
times ready and willing to do so on payment of the note. Chan- 
cellor Kent, in delivering his opinion in the case, puts it upon 
the ground that under the contract all that the plaintiff could 


demand was a return of 430 shares of the stock of the bank, 
and if he desired to have any specific 430 shares, he should 
have 80 provided in the contract. He quotes, with appro- 
bation, the case of Le Croy v. Eastman, 10 Mod. R. 499, as 
follows : 

^^ Here* the defendant held £990 in South Sea stock, in trust 
for the plaintiff. The stock stood in his name, and he gave a 
note declaring the trust. Five hundred pounds of it was after- 
, ward transferred to the plaintiff, and a bill was filed, for aa ac- 
count for the residue, at the then price of stodi. The defend- 
ant admitted in his answer that be had mortgaged £1,000 of 
stock, and sold out all the stock in his own name, except eighty 
pounds ; but he had more than enough in another person's name 
to have answered the trust, if the plaintiff had Insisted upon a 
transfer ; and he offered the residue of stock due to the plaint- 
iff, amounting to £490, with the dividends. Lord Chancellor 
Parker held that the defendant was accountable only for the 
stock and dividends, and not for the price at which the stock 
was held. He observed that, as £100 South Sea stock was not 
to be 'specificated' from another, equity will never adjudge a 
man to have broken his trust in a higher degree when he may, 
with equal reason, be admitted to have broken it in a lower, and 
that the stock mortgaged must be esteemed the stock of the 
plaintiff, and the stock sold that of the defendant." ^ 

After reviewing the above authorities, the California Court, 
in Atkins v. Gamble,* further remarked: "But,- in all these 
cases, the stock stood in the name of the bailee, and it is claimed 
that the cases turned chiefly on this fact, and on the course of, 
dealing between the parties, which established an implied agree- 
ment that the bailee might use the stocks as his own, and re- 
place them with other similar stocks. But we do not so under- 
stand the cases ; nor do we perceive any difference in principle 
between stocks standing in the name of the bailee and those 
standing in the name of the bailor, who has delivered to the 
bailee his certificates properly indorsed, and thereby placed it 

1 The cases of Horton t;. Morgan, 4 Duer. 66, affirmed in 19 N. Y. 172, Oilpin v. 
Howell, 6 Penn. St. 42, *and Allen v. Dykers, 3 Hill, 593, sustain the general 
proposition decided in Nourse v. Prime. 

S42Cal. S6. 


in the power of the bailee to transfer them into his own name 
at any time. 

" We hold, therefore, both upon reason and authority, that by 
the delivery to Martin (the purchaser) of ten shares of the 
plaintiff's stock, the defendant, on the facts proved and found, 
did not become responsible to the plaintiff for the proceeds of 
the sale. * * * The defendant was, at all times, able and 
ready and willing to transfer to the plaintiff the same number 
of shares of similar stock of the same company, and which had 
precisely the same value ; and it is evident that if the defend- 
ant, in these transactions, committed a technical breach of his 
trust, it presents a case of damnum absque injuria. 

*"*• It is a good defense, or rather a good excuse, that the mis- 
conduct of the agent has been followed by no loss or damage 
whatever to the principal ; for then the rule applies that, al- 
though there is a wrong, yet it is without any damage, and to 
maintain an action both must occur, for damnum absque injuria 
and injuria absque damnum are in general equally objections to 
any recovery." ^ If the shares are not the equivalents of each 
other, the rule is undoubtedly different. 

§ 82. Injuries Buffered by equitable owner of stock — 
Conversion by pledgee. — This matter was very fully consid- 
ered in a case in California.^ It was an action to recover the 
value of mining stock alleged to have been converted by the 
defendants ; one T having hypothecated 500 shares of the stock 
of the company with defendants, as collateral security for a 
debt. At this time, of these shares, the ones referred to stood 
on the books of the company in T's name as " trustee," but be- 
longed, in fact, to the plaintiff. It was found, as a fact, that T 
pledged to the defendants the stock in controversy as collateral 
security for the loan, and that defendants had no actual notice 
that the stock belonged to the plaintiff, and not to T. The 
question arose whether the fact that the stock stood on the 
books of the corporation in the name of T, " trustee^^^ was suffi- 
cient to put the defendants upon inquiry as to the plaintiff's 
title, and operated as constructive notice of his equitable rights. 

1 Btory on Agency, Bee. 236. > Brewster v. Sime, 42 Oal. ISO. 

112 CONVERSION. § 82 

It was a common practice in California to transfer stocks into 
the name of some person as " trustee," for the sole purpose of 
concealing the name of the real owner, whose transactions in 
buying or selling a particular stock, if his name were known, 
might operate to enhance or depress its market value. To avoid 
this result, and sometimes with a view to escape assessments 
upon stocks of doubtful value, or to protect his credit from the 
damage to which it might be exposed if it were known that he 
was a large operator, the owner resorted to the device of causing 
the stock to be transferred into the name of some other person 
as *' trustee." In such cases the trustee was a mere man of 
straw, having no interest in the stock, nor any trust to perform, 
except to manage and dispose of it as the owner should direct. 
It was thought that considerations of public policy and com- 
mon justice demanded that when stock was placed in the name 
of a "trustee" under these circumstances, the secret owner 
should be bound by the acts of his *' trustee " dealing with per- 
sons who had no actual notice of the relations between the par- 
ties ; and therefore, where nothing appeared on the books of the 
corporation, or on the face of the certificate, to indicate the trust 
and its nature, except the mere addition to the name of the word 
" trustee," the owner, it was held, had clothed his agent with the 
legal title, one of the highest indicia of ownership, and should 
bear the consequences resulting from the acts of the agent rather 
than an innocent person, who had advanced his money on the 
faith that the agent was the real owner, or at least had authority 
to sell or hypothecate the stock. While it was not denied that 
words might be inserted in a certificate which would so clearly 
indicate a trust and its nature as to limit the power of a trustee, 
and operate as constructive notice of the equities of the cestui 
que trusty it was held that the mere addition of the word " trus- 
tee " after the name in the certificate was not, in California, of 
itself, constructive notice of the equities of a secret owner of the 
stock, especially against persons who in good faith purchased or 
advanced money on the stock without notice. Where the legal 
tide and apparent right of disposition is vested in a person 
upon some secret trust, which restricts the powers of the " trus- 
tee " as between the parties, nevertheless, the rights of purchas- 
ers, pledgees, and mortgagees, in good faith, for a valuable 

§ 82 CONVERSION. 113 

consideration paid at the time, and without notice, are unaf- 
fected by the trust. 

In the case under consideration, it also appeared that the 
plaintiff had, when about to absent himself from the country, 
indorsed the certificates, so that they could be transferred in his 
absence, and deposited them with the ^^ trustee " for sale, know- 
ing that he thereby enabled him to transfer the legal title and 
apparent ownership into his own name, and placed him in a po- 
sition to represent the stock as its true owner. This was some- 
thing more than mere delivery of possession, which ought not 
to be sufficient alone to bind the owner. The plaintiff, there- 
fore, haying clothed the ^^ trustee" with the usual indicia of 
ownership and right of disposal, was held bound by the disposi- 
tion of it to one who had acquired it without notice, for a valu- 
able consideration, on the faith of such indicia.^ 

In the case of Thompson v. Toland, 48 Cal. 99, it appeared 
that certain parties were brokers, and engaged in buying mining 
stocks on commission for others, and when they loaned a por- 
tion of the money to make a purchase, were in the habit of 
keeping the stock purchased as their security. A person em- 
ployed them as his brokers, to buy mining stocks, and entered 
into a contract with them, evidenced by a letter, signed by the 
brokers, specifying the conditions on which the business rela- 
tions were to be conducted. Under the agreement, the brokers 
bought mining stock for the principal when he directed, furnish- 
ing a portion of the money, and kept in their possession the 
stocks purchased. 

The certificates were issued to several persons by different 
mining corporations. Subsequently, the brokers failed. They 
had stock in their hands belonging to their employers, and pur- 
chased for him, and the employer's note for the balance he owed 
them. To secure some of their creditors, they assigned to them 
the stock so purchased, by filling up the blank indorsements on 
the back of the certificates, and delivered them with the note to 

1 Brewster v. Sime, 42 Cal. 139 ; Bridenbecker v. Lowell, 32 Barb. 17 ; 4 Barb. 
373; 2 Kent's Com. 621; Saltus v. Everett, 20 Wend. 278, 280; Com. Bank v. Eort- 
right. 22 Wend. 361 ; Story, Agency, sees. 83, 94, 228; W. T. Co. o. Marshall, 37 
Barb. 609. See Sieira Nevada Mining Co. v. Sears, 10 Nev. 346 ; Crocker o. 
Crocker, 31 N. Y. 607 ; Fatman v. Lobach, 1 Duer, 364 ; Bank v. K. E. Bank, 11 
How. 240; Shaw v. Spencer, 100 Mass. 382. 

D. A. L— 8. 

114 CONVERSION. § 82 

thoBe creditors. Before this assignment, the creditors were in- 
formed that the debtors had pledged the stock to third parties 
as security for a loan, and to obtain the stock the creditors al- 
lowed the brokers to draw a check on their bank for the amount 
due, which they certified, and with this check this debt was 
paid off, and the stock delivered to the creditors. The owner 
of the stocks then called on the creditors, and asked to see the 
stocks. They were shown him, when he informed them that 
the stocks were bought for him. The creditors declined to 
recognize him. The certificates stood, for the most part, in 
the names of various persons, and were by them indorsed, and 
none of them indicated on their face that any person other than 
the possessor was the owner. 

The reasoning of Brewster v. Sime, 42 Cal. 139, was applied 
to this case, and the certificates being properly indorsed to the 
creditors by the brokers so as to pass by delivery, and the cred- 
itors having taken without notice of the secret equities of the 
broker's principal, the transaction between the brokers and the 
creditors to whom they transferred the stock, was treated, for 
the purposes of the action, as though the brokers had the abso- 
lute right as against the employer to pledge the stocks when 
they were hypothecated. 

The further question being raised that the creditors had no 
right as pledgees to sell the stocks and convert them without a 
previous demand and notice, it was held that this was purely a 
question between the assignors or brokers and the assignees or 
creditors, and that the original employer of the brokers was 
virtually a stranger to the transaction, and could not be heard 
to question it, especially as the debt for which the stocks were 
pledged had not been paid nor tendered. 

On petition for rehearing, it was further held that in an action 
by a pledgee against a stranger for the conversion of the pledge, 
the plaintiff is entitled to recover the full value of the goods, be- 
cause he is answerable over to the pledgor for the surplus. But 
if the goods be converted by the owner, or by any one acting in 
privity with him, the pledgee can recover only the value of his 
special interest in the pledge.^ 

^ TreadweU v, Davis, 34 Cal. 606; Story on Bailments, sec. 352; Lyle v. Barber, 
5 Bin. 467; Heyden & Smith's Case, 6 Coke, 486; IngersoU v. Bokkelen, 7 Cow. 

§ 88 CONVERSION. 115 

§ 83. Sale of mining stock — Fraudulent representa- 
tions — Rescission. — Notes were given in part payment of a 
certain number of shares of stock in a mining company. It ap- 
peared that the purchaser of the shares and maker of the notes 
had never visited the mine. Suit was commenced on the notes. 
The defense was, that the purchaser was induced to buy by the 
false and fraudulent representation of the plaintiff as to the value 
of the mines owned by the company issuing the stock. 

There was no attempt on the part of the defendant at rescis- 
sion before the trial of the cause. It was held that, if it were 
necessary to rescind the contract and return the property, a sur- 
render of the stock to be delivered to the plaintiff, made after 
verdict and judgment upon requirement of the court as a con- 
dition of denying a new trial, was not in time. Cases to the 
contrary are cases where a party, upon fraudulent representa- 
tion as to his pecuniary condition, has induced other parties to 
sell him goods on credit, giving his own note therefor. The 
vendor in such cases, upon discovering the fraud, may bring 
trover or replevin without first surrendering the note. But he 
must be prepared to surrender it on the trial. But' where the 
vendee gives the note of a third party upon a fraudulent repre- 
sentation as to the responsibility of the maker, the vendor must 
return the note to the vendee before suing, for the delay may 
result in injury to the vendee.^ But where there was no aver- 
ment and no evidence of rescission or tender, and virtually no 
averment that the stock was of no value, the defense as to 
fraudulent misrepresentations was held insufficient to a suit on 
the notes given in payment thereof. A finding that a mine is 
of no value whatever is not a finding that the stock is valueless. 
The general rule is that, until rescission of the sale and return 
of the stock, the fraudulent representations constitute no defense 
to an action on notes given in payment.^ 

The cases state the rule as above when the property is of the 
slightest value to any one. When the article is absolutely value- 

670; Pomeroy v. Smith, 17 Pick. S5. See, generally, as to pledges of stock, 
Brewster v. Hartley, 37 Cal. 10. 

1 3 Greenl. Me. 33, note. 

s Gilford v. Garvill, 29 Cal. 689; Herrin v, libbey, 36 Me. 357; Burton v. Stew- 
art, 3 Wend. 239 ; Kimball v, Cunningham, 4 Mass. 602 ; Norton v. Young, 3 
Greenl. 32; Campbell v, Fleming, 1 Ad. & E. 40. 

116 CONVERSION. § 84 

less, it is unnecessary to return it. This is on the ground that 
an article absolutely without any value is not the subject of a 
contract — that it cannot afford any consideration for a promise, 
and the contract is nudum pactum — absolutely void ab initio^ 
for want of a consideration to support it. But it is not enough 
that it may be without value to the defendant. If it is or may 
be of any value to either party, or if the detention would pro- 
duce any loss or injury to the other party, the contract must be 
rescinded, and the property returned within a reasonable time 
after the discovery of the fraud.^ 

§ 84. Stock stolen. — ^In a case in Nevada, shares of stock 
were stolen from the plaintiff, they having been transferred in 
blank. The defendant was a broker engaged in buying and 
selling mining stock. He received the certificates in the usual 
course of business from a stranger, sold them upon commission, 
and paid him the proceeds. The action was for restitution or 
value. It was held first that the stock was not negotiable paper.^ 
And in answer to the defense that defendant was an innocent 
agent of the person from whom he received the shares of stock, 
without knowledge of the felony, and no judgment should have 
been rendered against him, it was considered to be well settled 
that agency is no defense to an action of trover, and that if the 
principal is a wrong-doer, the agent is a wrong-doer also. A 
person is guilty of a conversion who sells the property of an- 
other without authority from the owner, notwithstanding he 
acts under the authority of one claiming to be the owner, and is 
ignorant of such person's want of title.^ 

1 Gifford t7. Caryill, 29 Cal. 593; Norton v. Young, 3 GreenL 33; Conner v. Hen- 
derson, 16 Mass. 321; Perley v. Balch, 23 Pick. 285; Ghitty on Cont. 276, 402, 636, 
665 ; Hunt v. Silk, 5 East, 449 ; Conner v. Henderson, 6 Mass. 314 ; Shepherd v. 
Temple, 3 N. H. 457 ; Carter v. Walker, 2 Rich. 40 ; Christy v. Cammins, 8 
McLean, 386. See, also, as to false representations, Ellis v. Schmoeck, 5 Bing. 
521; Jennings v. Broughton, 22 L. J. Ch. N. S. 583; Bedford v. Bagshaw, 4 Hurl. 
& K. 538; Lead M. Co. v. Baynes, L. R. 2 Ex. 324. 

> See Atkins V. Gamble, and Sherwood v. Meadow Valley Minings Co.; Shaw 
V. Spencer, 100 Mass. 382; Mechanics' Bank v. N. Y. & K. H. R. B. Co. 13 N. Y. 
599. See ante, § 80 and note. 

8 Berclch v, Marye, 9 Ney. 312 ; Kimball v. Billings, 55 Maine, 147 ; Kock v. 
Branch, 44 Mo. 543; Hoffman v. Caron, 22 Wend. 285. 




§ 85. Trespasses on real property. ^ 

§ 86. Landlord's ri^^^ht to enter his premises. 

§ 87. Justifiable entries. 

§ 88. Self-liberation. 

§ 85. Trespasses on real property. — The gist of an ac- 
tion for trespass to land consists in the wrongful entry upon it ; 
and any entry upon land in the rightful possession of another, 
without license or permission, is a trespass, and this, too, though 
the land be uninclosed. But the plaintiff cannot recover when 
the law has commanded the entry or the taking possession, as 
in case of an entry and levy by the sheriff by virtue of a valid 
writ. Nor where an entry is made into an inn, shop, store, or 
warehouse, on business, or into the coach of a common carrier 
of passengers, if the party be fit to be received. Nor where the 
party in possession has bound himself by debt to another with- 
out any stipulation as to the place of payment. The creditor 
may enter the premises for the purpose of demanding payment.^ 
Nor where the party in possession has assumed to be a trustee 
as to the premises. The owner may make an entry to see if his 
interests are properly regarded by the party in possession.^ 
Neither can the plaintiff recover where goods have been sold 
which lie upon the premises of the vendor. Unless there is 
some agreement to the contrary, the vendee may go upon the 
land to take the goods.^ Where the possessor of land has 
wrongfully burdened another with his goods, the latter may 
take the goods and place them upon the former's land, and may 

13 Blackst. Com. 212. 

> Newkirk v. Sabler, 9 Barb. 652. 

* McLeod v. Jones, 105 Mass. 403. A license is implied anless a severance from 
the freehold is necessary. (Ibid. And also McNeal v. Emerson, 15 Gray, 384; 
Drake v. Wells, 11 Allen, 141 ; Giles v. Sitnonds, 15 Gray, 441 ; Wood v. Manley, 
U Ad. & E. 34. See Patrick v. Colerick, 3 Mees. & W. 483.) 


make an entry for that purpose.^ So where, without any fault 
of the owner, goods have got upon the land of another, the 
owner may enter and reclaim them.^ A person may also enter 
another's premises to succor his beast, in danger of perishing. 
Where a person brings or suffers a nuisance upon his premises, 
to the peculiar injury of his neighbor, the latter may at common 
law enter and abate the nuisance. A defendant may enter the 
premises of the plaintiff and remove the eaves of a shed which 
overhang the defendant's land, and in rainy weather drip upon 
his premises.^ An entry may also be made on another's premi- 
ses by reason of necessity, as in endeavoring to escape from a 
savage animal, or a man in pursuit, with hostile intent, or when 
the defendant enters upon the plaintiff's premises to pass a 
flooded highway.* In all these cases,' if the entry be peaceable, 
without doing unnecessary damage, the damage done appears to 
be damnum absque injuria^ although it has been intimated i« 
one case that the damage should be either paid for or repaired.* 
In a very old case in the King's Bench, in 1605,® an action of 
trespass was brought for the chasing of sheep. The defendant 
pleaded that they were trespassing upon certain land, and he 
with a dog chased them out ; and as soon as the sheep were out 
of the land he called in his (fog. Crew, C. J., said that it seemed 
to him that the defendant ^^ might drive the sheep out with the 
dog ; and he could not withdraw his dog when he would in an 

^ Cole v. Maundy, Vin. Abr. Trespass, 616. 

2 Millen v. Fawdry, Latch, 120; Bigelow's L. G. Torts, 382. In trespass for en 
tering plaintiffs close a plea that the defendant entered to take certain of his 
chattels which were therein, and that he so entered doing no unnecessary dam- 
age, was held bad. But it was a case where the defendant dug up the plaintiff's 
soil to remove a barn, etc., and it was conceded that he might have entered to 
obtain fruit which had fallen from his tree overhanging the plaintiff's land, and 
this on the ground of accident; and so of a tree falling into the premises of 
another. (Anthony v. Haney, 8 Bing. 187. See 3 Blackst. Com. 4. ) The right to 
enter the lands of another to obtain property has been denied by some American 
cases, such as where the defendant entered to obtain a millstone belonging to 
him, to obtain a mare and colt, etc. (Heermance v. Vernoy, 6 Johns. 5; Blake 
V. Jerome, 14 Johns. 406; Newkirk v. Sabler, 9 Barb. 652.) But it was still ad- 
mitted that the act might be justified on the score of necessity, or even to saccor 
cattle in danger and belonging to the party entering. (Absor v, French, 2 
Show. 28.) 

* Penruddock's Case, 5 Coke, 1006. 

« Absor V. French, 2 Show. 28; Tear Book, 37 Hen. YI, p. 37, pi. 26. 

6 Chambers v. Bedell. 2 Watts & S. 225. 

« Millen v. Faudrye, Poph.161. 


instant, and therefore it is not like to the case of 38 Edw. Ill, 
where trespass was brought for entering into a warren, and 
there it was pleaded that there was a pheasant in his land, and 
his hawk flew and followed it into the plaintiff's ground ; and 
there it seems that it is not a good justification, for he may pur- 
sue the hawk but cannot take the pheasant (6 Edw. lY, fol. 7). 
A man cut thorns and they fell into another man's lands, and 
in trespass he justified for it, and the opinion was, that notwith- 
standing this justification, trespass lay, because he did not plead 
that he did his best endeavor to hinder their falling there ; yet 
this was a hard case. But this case is not like to these cases, 
for here it was lawful to chase them out of his own land, and 
he did his best endeavor to recall the dog." Doderidge, J., 
agreed, observing : " A man is driving goods through a town, 
and one of them goes into another man's house, and he follows 
him ; trespass doth not lie for this, because it was involuntary, 
and a trespass ought to be done voluntarily, and so it is injuria^ 
and a hurt to another, and so it is damnum^ The point was 
distinctly made by Littleton for defendant, that if a man '^ be 
making of a lawful chase, and cannot do it without damage to 
another, this is damnum absqtie injuria^ (21 Hen. VII, fol. 
28.) And this view appears to have been taken by the judges, 
although it does not appear from the report of the case that any 
actual damage was caused by the defendant's chasing the sheep. 
In an action against the defendant for breaking the plaintiff's 
close with dogs, etc., and trampling down his grass in a certain 
close on divers days, the usual notice not to trespass was proved, 
and a witness proved that after the notice he saw the defendant 
walking down the turnpike road, and his dog jumped into the 
close. Parke, B., was decidedly of opinion that the dog jump- 
ing into the field without the consent of its master not only was 
not a willful trespass, but was no trespass at all on which an ac- 
tion could be maintained. He therefore nonsuited the plaintiff.^ 

§ 86. Landlord's right to enter. — A landlord may enter his 
premises after the expiration of his tenant's term, and after no- 
tice to quit and failure to deliver possession ; that is to say, after 
the tenant's right to the possession has ceased, and the landlord's 

1 Brown v. Giles, 1 Car. & P. US. See Bead t?. Edwards, 17 Com. B. K S. 260. 


right to enter has accrued. So in trespass, for breaking and en- 
tering plaintiff's house, it appeared that the plaintiff had been 
tenant of the house to the defendant from week to week ; that he 
had received a regular notice to quit, but omitted to deliver up 
possession ; whereupon, the defendant, at a time when nobody 
was in the house, broke open the door with a crowbar and other 
forcible applications, and resumed possession. Some little fur- 
niture was still in the house. The right to enter peaceably was 
conceded by the court ; and they said if he had used force, that 
was an offense in itself, but one against the public for which he 
might be indicted, if he had done wrong,^ The judgment be- 
low being for the plaintiff, a new trial was ordered. 

§ 87. • Justifiable entries. — '' If one comes into my close 
with an .iron bar and sledge, and there breaks my rocks, and 
afterward goes off, leaving the sledge and bar in my close, 
in an action of trespass for carrying them off, I may justify the 
taking of them and placing them in plaintiff's close, next ad- 
joining, especially if I give notice thereof to the plaintiff, as 
was pleaded, since they were brought upon my close of his own 
wrong ; and in such case I am not bound to. take them to the 
pound, but may well remove the tort done to myself by the 
plaintiff." ^ But not where the goods are placed on the grounds 
of a third party.8 

§ 88. Self-liberation. — A person improperly detained against 
his will, without any color of authority, may force his way out. 
In an action of trespass for breaking plaintiff's close and carry- 
ing off his goods, it appeared that the plaintiff, a merchant, 
contracted to purchase a wagon-load of cotton from the defend- 
ant at a stipulated price, and the cotton was turned out and 
weighed. It was then discovered that the cotton was fraudu- 
lently packed, and the plaintiff refused to take it at the price 
stipulated, but insisted upon the right to retain it, paying for it 

^ Turner v. Meymott, 1 Bing. 158; Taunton v. Costar, 7 T. R. 431; Mussey v. 
Scott, 32 Vt. 82; Butcher v. Butcher, 7 Bam. & C. 399. 

> Cole V. Maunder, 2 Rolle's Abr. 566; Rea v. She ward, 2 Meea & W. 424; Tyr- 
ringham's Case, 4 Rep. 386; Patrick v. Colerick, 3 Mees & W. 483. 

s Patrick v. Colerick, 3 Mees & W. 483; Chase v. Jefferson, 1 Houst. 257; 3 
BlaokBt. Com. 4. 


what, upon a survey by merchants, should be thought its value. 
To this the defendant objected ; but the cotton was allowed to 
remain in plaintiffs yard till the next morning, when the de- 
fendant went and replaced it in his wagon. To prevent its re- 
moval, plaintifE locked his gate, and defendant then broke it and 
forced his way out. The court below charged that, the cotton 
being fraudulently packed, the plaintiff had a right to refuse 
payment of the stipulated price ; but this put an end to the con- 
tract of sale, and the defendant had still the title to the cotton ; 
and as to the trespass, that defendant, having entered by plaint- 
iffs consent, and he and his goods being detained against his 
will, he had a right to force his way out, and committed no tres- 
pass in doing so. This view of the law was held, on appeal, to 
be correct.^ 

1 Robson V, Jones, 2 BaU. 4. 




§ 90. Right of surface support — Common-law presumptions. 

§ 91. Express grant of right to surface support. 

§ 92. Support from adjacent soil. 

§ 93. Lateral support to ditch property. 

§ 94. Flooding. 

§ 96. Upper and lower level. 

§ 96. Mining operations regarded as nuisances. 

§ 97. Fraudulent working. 

§ 98. Prior possession of lands adjoining mines. , 

$ 99. Right of oldest locator. « 

§ 90. Right of surface support — ^The common4aw pte- 
sumptlons. — There is a prima facie inference at common 
law upon every demise of minerals or other subjacent strata, 
where the surface is retained by the lessor, that the lessor is 
demising them in such a manner as is consistent with the reten- 
tion by himself of his own right to support. In the absence of 
express words, showing clearly that he has waived or qualified 
his right, the presumption is that what he retains is to be en- 
joyed by him modo et forma^ and with the natural support 
which it possessed before the demise.^ So, in an action for un- 
dermining the foundation of a house, it is sufficient to allege 
that the owner, by reason of his possession of the house, is 
entitled to the support of the adjacent soil for its foundations, 
although it is not shown how the right was acquired.^ 
' In Harris xi. ^yding, 5 Meeson & W. 59, veins and mines 
were reserved from a grant, " with free liberty of ingress and 
regress, to come into and upon the premises to dig, delve, search 
for, and get the said minerals and every part thereof, and to 

^ Dngdale v. Robertson, 3 Kay & J. 695. In Haines v. Roberts, 6 EL & B. 643; 
S. C. 7 £1. & B. 625, the duty of support in such cases is recognized as a general 
common-law right. See, also, to the same effect, Rogers v. Taylor, 27 L. J. N. 
8. Ex. 173 ; 2 H. & N. 828. 

a Rogers v. Taylor, 27 L. J. N. a Ex. 173 ; 2 H. & N. 828. 


Bell and dispose of, take and convey away the same, at their 
free will and pleasure ; and also to sink shafts, etc., for the rais- 
ing up, working, carrying away, and disposing of the same or 
any part thereof, making a fair compensation to the grantee for 
the damage done to the surface of the premises, and the pasture 
and crops growing thereon." Even under these broad words of 
reservation, the grantor was held entitled only to enter upon the 
land and take the coal in a reasonable manner, leaving a reason- 
able support to the surface, and not to take away the coal in a 
careless, negligent, or improper way.^ 

Where the surface of land and the minerals under it belong 
to different owners, the owner of the surface is prima facie en- 
titled to support from the adjacent strata ; and the owner of 
the minerals in working them is bound to leave sufficient sup- 
port for the surface in its natural state. A deed which severed 
the surface from the jninerals, contained a reservation of the 
mines to the grantor, with free and full power and liberty to 
work, sink, dig for, or win the same, and to drive drifts, make 
water-courses, or do any other act necessary or convenient for 
the working, winning, or getting the same, with a covenant by 
the grantor to pay to the grantee treble the damages, loss, or 
prejudice which the grantee should sustain by reason of such 
digging or working. It was held that the reservation was sub- 
ject to the implied right of the grantee of the surface to support, 
and did not empower the grantor to remove the whole of the 
minerals without leaving a support for the surface. And gen- 
erally, where an owner of land has granted the surface, reserving 
the coal-mines and seams of coal, and a right of entry for the 
purpose of working and winning the same, making compensation 
for the damage caused in so doing, he is not entitled to work 
out all the oeal so as to cause the surface to sink, unless the es- 
tablished course and practice of good mining at the time of the 
reservation, justifies him in so doing.^ 

In Jones v. Wagner, 66 Pa. 429,^ by partition, the surface 
was severed from the underlying coal, and the parts were allot- 

1 Harris v, Byding, 6 M. & W. 60; 8 L. J. K. S. Ex. 181. 

^Smarto. Morton, IJur.N. 8. 826; SG.L. B. 1001 ; 24 L. J. Q. B. 2d0 ; 6EI.&; 
BI. 30. 

Approyed in Homer v, Watson, 79 Pa. 661. 


ted to different heirs, without any limitation as to the removal 
of coal. It was held that the ownet of the coal could not re- 
move it without leaving sufficient support for the surface. The 
mining property is servient to the surface to the extent of suffi- 
cient supports to sustain it, and on default the owners and 
workers are liable for damages. To control the rule of the com- 
mon law, an usage to mine without observing this duty must be 
BO ancient and uniform in *the particular region as to amount to 
a custom. Such custom must be so ancient that the memory 
of man runneth not to the contrary. The upper and under- 
ground estates are governed, as other estates, by the maxim, sic 
utere tuo ut alienum non Icedas. 

The court stated the case and declared the law as follows : 
" The piece of ground out of which the controversy in this 
case has arisen formerly belonged to John Ormsby's estate, and 
in the partition of that estate in November, 1855, the minerals 
in and the surface of the land were separated and made to con- 
stitute two separate and distinct properties or estates, without 
any restriction, limitation, or servitude imposed on either, and 
were so allotted among two of Ormsby's heirs. The plaintiff 
claims title to the surface through the heir to whom it was al- 
lotted, and so do the defendants to the minerals from another heir 
to whom they were allotted. 

" The question in the court below, and here, is whether the 
latter have, by their unrestricted title, the right to mine and 
take out all the coal underlying the surface, without liability 
for injury thereto, or to buildings and improvements thereupon 
by subsidence or otherwise. The learned judge below reserved 
the point, and submitted to the jury the question of injury; to 
what amount, and whether it arose from unskillful or negligent 
mining in not leaving sufficient pillars or props in the mine to 
sustain intact the surface. On this question the jury found for 
the plaintiff, and at a subsequent day the court ruled the re- 
served question also in his favor, and entered judgment on the 
verdict. From this statement it will appear that the only neg- 
ligence or unskillfulness at all attributable to the defendants, if 
any, arose from not leaving sufficient pillars of coal or supports 
to sustain the surface, and this they undoubtedly did not, most 
probably under the belief that all the coals in the mine belonged 


to them by virtue of their purchase and title. This was cer- 
tainly true with the exposition of such a right given by Baron 
Parke, in Harris v. Ryding, 5 M. & W. 60 : ' I do not mean to 
say,' observed that able judge, ' that all the coal does not be- 
long to the defendants, btit they cannot get it without leaving 
proper supports.^ 

" The right of supports, ex jure naturoe^ which the owner of 
the soil is entitled to receive from the minerals underneath, 
has, within comparatively a few years, received much attention 
in the courts in England, and the rule deducible from the cases 
in all the courts, the House of Lords, Exchequer, and Queen's 
Bench, is, that where there is no restriction or contract to the 
contrary, the subterranean or mining property is subservient to 
the surface to the extent of sufficient supports to sustain the 
latter, or, in default, there is liability to damages by the owners 
or workers of the former for any injury consequent thereon to 
the latter. This is fully supported by Harris v. Ryding, 6 M. 
& W. supra^ determined at Easter Term, 1839, in the Ex- 
chequer; Humphries v. Brogden, 1 Eng. Law & Eq. 251, 
(1850) in the Queen's Bench, before Lord Campbell, C. J., 
and Patteson, Coleridge, and Erie, JJ. The whole ques- 
tion was there discussed most learnedly and ably by the Lord 
C. J., and the same result arrived at as had been in the Court 
of Exchequer, supra, and in the case of The Earl of Glasgow 
V. The Hurlet Alum Co., House of Lords in 1850, 8 Eng. Law 
& Eq. 18. There are many other cases referred to in the En- 
glish courts to the same efEect, by Rogers on Mining, p: 455 et 
seq. Among them are Rowbotham v. Wilson, 8 H. L. Cas. 348 ; 
Pennington v. Gallard, 9 Ex. 1, for the principle stated by 
the learned author at page 467 : *• That if an owner of lands 
grant a lease of the minerals beneath the surface, with power 
to work and get them in the most general terms, still the lessee 
must leave a reasonable support for the surface, and so con- 
versely, where the minerals are demised and the surface is re- 
tained by the lessor, there arises a prima facie inference at com- 
mon law, upon every such demise, that the lessor is demising 
them in such a manner as is consistent with the retention by 
himself of his own right of support.' These citations prove 
two things, viz., that the owner of a mineral estate, if the law 


be not controlled by the conveyance, owes a servitude to the 
superincumbent estate of sufficient supports ; consequently, the 
failure to do so is negligence, and so may be declared upon. 
(Humphries v. Brogden, supra.) 

"A usage to mine, without the observance of this duty by de- 
fendants, must have been so ancient and uniform in the region 
in which the property is situated as to amount to a custom or 
usage capable of controlling the rule of the common law cited 
above, and of becoming the law itself. One element of such a 
custom would be, that it is so ancient ^ that the memory of man 
runneth not to the contrary.' This could not be, and was 
hardly pretended of the 'locality in question. Nor is it likely 
that in a business like mining bituminous coal, found only in 
the western counties of the State, there ever was any rule there 
other than that which would result from convenience. 

^^ As to the house in question damaged, it undoubtedly had 
a right to supports as incident to the ground on which it stood. 
What might be the consequence of building in an unreasonable 
manner, taking into view the mining rights beneath, on a ques- 
tion of the sufficiency of the supports, does not arise in this case, 
and need not be decided. 

" We have no case strictly of authority in our books, nor do I 
find any in the books of our sister States. In most of them but 
little subterranean mining exists, and in others the question has 
not presented itself for adjudication. In none of the cases 
cited by the learned counsel from our State reports is the ques- 
tion decided or intentionally touched. We therefore must rule 
the point for ourselves for the first time. The English cases re- 
ferred to, and others which might be referred to, emanate from 
great ability, and from a country in which mining, its conse- 
quences and effects, are more practical, and the experience 
greater than in any other country of which we possess any 
knowledge. We think it safe, therefore, to follow its lead in 
this matter, and hold that, in the case in hand, the recovery was 
right, predicated as it was of the want of sufficient supports in 
the mine to prevent the plaintiff's ground, house, and orchard 
from injury by subsiding into the cavity made in the earth by 
the removal of the coal. The upper and underground estates 
being several, they are governed by the same maxim which 


limits the use of property otherwise situated, sic utere tuo tU 
alienum non Icedaa. We have no doubt but all the evils dep- 
recated by the adoption of this rule will disappear under regu- 
lations adapted to each case of severance of the soil from the 
minerals. Contract may devote the whole minerals to the en- 
joyment of the purchaser, without supports, if the parties choose. 
If not, the loss by maintaining pillars or putting in props will 
necessarily come out of the value of the mineral estate. If at 
any time the public necessities may demand the pillars to be 
removed for fuel, we may safely assume that the same neces- 
sity will provide some rule which will be satisfactory in such a 
crisis. We think the case was well decided below, and that the 
judgment must be affirmed." ^ It follows from these principles 
that whatever may be the loss to the subjacent owner by reason 
of the duty incumbent upon him to leave a proper support for 
the surface, it is damnum absque injuria^ and he must submit to 
it, in the absence of special agreement, custom, or prescriptive 

But where the conveyances of an estate in a mining district, 
sold in lots, contained an exception of all mines and minerals un- 
der the land included in the lot conveyed, with full power for 
the grantor to work, get, and dispose of them, without entering 
upon the land sold, and without being answerable for any injury 
to the land, or any buildings on it, by reason of working or get- 
ting the excepted mines or minerals, and without being liable 
to any action or suit for any such injury, the court held that a 
purchaser of two of the lots was not entitled against the grantor 
to either vertical or lateral support for the surface of his land.^ 

Where a lessor of a coal-mine covenanted that the lessee 
should peaceably and quietly ^^ have, hold, occupy, possess, and 
enjoy the mine, without any let, suit, trouble, molestation, inter- 
ruption, or disturbance whatever," the lessor, in working iron- 
stone lying between the surface of the soil and the demised coal, 
caused part of the roof of the coal-mine to crush and fall in, and 
to be flooded ; these acts were held to constitute a breach of the 
covenant, and the lessee was also held entitled to an injunction 
restraining the lessor from working the iron-stone within such 

1 Jones v. Wagner, 66 Pa. 429, approved in Homer v, Watson, 79 Pa. 661. 
s WUliams t;. BagnaU, 12 Jur. N. 8. 967. 


a distance of the surface as interfered with the lessee getting 
the coal with full advantage and profit.^ A lessor has no right 
to let down the surface soil, and the right to support such sur- 
face soil is incident to the grant of the surface, and cannot he 
taken away unless by express agreement.^ If, however, from 
the terms of a lease it can be gathered, by reasonable construc- 
tion, that it was the intention of the lessor that the lessee of a 
mine has the right to work the mine so as to let down the sur- 
face, subject only to paying damages according to the covenants, 
the liability will be confined to those covenants.^ And so, where 
by a lease it appeared to be the intention of the parties that all 
coal should be removed except certain specified pillars, and these 
were left, and the defendants otherwise worked the mine in a 
proper manner, but still their legitimate working caused a sub- 
sidence, they were held not liable.* The English doctrine is now 
well settled, that, as a general rule, in the absence of express 
contract, the owner of the minerals cannot remove them without 
leaving sufficient support to maintain the surface in its natural 
condition, and that if the mine-owner so weakens the support to 
the surface by the removal of the minerals as to cause its sub- 
sidence, he is liable for all the damages that ensue therefrom.'^ 
In New York, it has been held that all that can be claimed by 
an owner of the surface, under the right of subjacent support, 
is that no physical injury be wrought to the surface in its nat- 
ural state, or as contemplated at the time of the grant. The 
mine-owner is not bound to support buildings subsequently 
erected. Whatever is necessary for the latter to do for the 
profitable and beneficial enjoyment of his own possession, and 
which he may do with no ill effect to the surface in its natural 
state, he may do, though it harm erections lately put thereon. 
These rights of the mine-owner do not require or depend upon 
a covenant for compensation. 

1 Shaw t7. Senton, 27 Law J. N. S. Ex. 263; 2 Hurl. & N. 858. 

s Proud V. Bates, 31 Law J. Gh. 406; 5 Am. L. Reg. N. S. 171. 

B Smith V. Darby, Law B. 7 Q. B. 716; 3 Moak Eng. R. 281; Aspdeu v. Seddon, 
L. R. 10 Ch. App. 394. 

4 Eadon v. Jeffcock, 7 Law R. Ex. 379: 3 Moak. Eng. R. 458. See Dugdale o. 
Robertson, 3 Kay & J. 695: Taylor v. Shafto, 8 Best & S. 228. 

6 Wood on Nuisances, 185; cases cited, 184-190; Wakefield v. Baccleugh, Law 
R. 4 Eq. 624; Ryckman v. Gillis, 57 K. Y. 68; 15 Am. Rep. 464; Marvin v. Brew- 
ster L Co. 55 N. Y. 638; 14 Am. R. 322. 


Nor can the exercise of these rights be complained of because 
they create a nuisance to the owner of the surface. Where 
there is an express grant of a right to do all things necessary to 
attain an end, and a nuisance to the grantor results as a neces- 
sary incident thereto, there can be no claim for private damage 
therefrom. The mine-owner, for instance, cannot be restrained 
from blasting in the night time, as is usual in mines, because it 
disturbs the sleep and thus affects the health of the owner of the 
surface and of his family, or diminishes the value of his estate.^ 

§ 91. Express grant of right to surface support — In- 
juries to subterranean streams. — A deed by which mineral 
rights are conveyed must clearly express that the grantor also 
gave the right to take away the surface support, before his re- 
served right to the proper support of the surface will be held 
also to have been conveyed. 

In a late case, (Jan. 6th, 1876) in the Supreme Court of 
Pennsylvania, the court, by Gordon, J., said : " We have held, 
in the case of Wood & Co. v. Watson, decided at the present 
term, approving Jones v. Wagner, 10 P. F. Smith, 429, that, of 
natural right, the surface land is entitled to support from the 
strata below, and that when one owning the whole fee grants the 
minerals, reserving the surface to himself, his grantee is only 
entitled to so much of the minerals as he can get without injury 
to the superincumbent soil, and that the plea of a custom to the 
contrary could not be entertained, because such a custom would 
be unreasonable, and hence wanting in an element essential to its 
validity. To the opinion in that case we refer for the reasoning 
intended to sustain that conclusion. It is admitted, however, that 
as a man may do what he pleases with his own, he may, by grant, 
part with the right of surface support, and it is contended that 
such is the purport of the deed in question. That part of the 
aforesaid deed which is supposed to release such right reads thus : 
*' And all the privileges necessary for the convenient working, 
running, and transportation of said coal, and deposition of ex- 
cavated matter, and also all rights and privileges incident or 
usually appurtenant to the working and using of coal-mines.' 

i Marvin v, Brewster Iron Mining Co. 55 N. Y. 538» and numerous authorities 
reviewed. See. also, Hays v. Cohoes, 2 N. Y. 159. 

D. A. I.— 9. 


But we cannot perceive that this grant in any way compromises 
the grantor's right of surface support. If, indeed, the destruc- 
tion of the superincumbent estate be one of the privileges ne- 
cessarily incident and appurtenant to coal-mining, then the said 
indenture does convey the right contended for. As, however, 
we have just determined that such destruction of the surface is 
in no way incidental to such mining, we must necessarily refuse 
our assent to the construction contended for. It is, in efEect, 
but another form of a plea of a general custom or usage per- 
missive of the removal of all adjacent support. For it is argued 
that when the vendor used the words, " all the rights and priv- 
ileges incident or usually appurtenant to the working and using 
of coal mines," he did so in view of such custom as above re- 
ferred to, and that this covenant must be interpreted accord- 
ingly. The answer to all this is, that as no such custom could 
have existed because of its unreasonableness, it could not have 
entered into the contract of the parties. Support is part and 
parcel of the reserved estate — it is of common right, and hence 
must pass, if at all, by express grant, and is not to be defeated 
by mere implication arising from language that does not import 
such an efEect. We think the whole question is determined in 
the negativing of the custom contended for. So far as we can 
judge from the record presented us, the loss of the plaintiff 's 
springs was occasioned by the ordinary operation of mining, 
and would have occurred though no part of the surface had 
been broken. Mining must interfere more or less with those 
subterranean streams and percolations of water which appear 
upon the surface as springs. To say that the owner of the sub- 
strata shall be accountable in damage for their disturbance is to 
say that he shall have no use whatever of his minerals, for with- 
out interfering to some extent with such waters, mining is im- 
possible." ^ And as to the subterranean streams and percolations, 
and the injuries done to them, it is a case of damnum absque 

§ 92. Support from adjacent soil — ^In a note to the case 
of Bononi v. Backhouse, 96 Eng. C. L. E. 622 ; S. C. 9 H. L. 

1 Coleman v. Chadwick, Supreme Court of Penn. JaxL 6th, 1S76, 76 Pa. Kl, 2i2. 
9 See pott. Chapter X. 


Cas. 503, it is said that the doctrine that the right of support to 
soil by the adjacent and underlying strata, and, subject thereto, 
the correlative right to make use of s\ich strata in any lawful 
and reasonable manner, sxejure naturoe^ or, in other words, the 
natural incidents of property, and not of the character of ease- 
ments, received the apparent approbation of the House of Lords 
in Rowbotham v. WUson, 2 L. T. N. S. 642 ; S. €. 8 H. L. Cas. 
S48, and see Brown v. Robins, 4 Hurl. & N. 186 ; and that this 
view is generally adopted in the United States, where it is 
further held, as a consequence, that, except by grant, and per- 
haps prescription, the owner of land cannot gain any additional 
right of support by the erection of buildings thereupon.^ 

"The consequence necessarily is," continue the annotators, 
" that until the owner of the subjacent strata does some act which 
is productive of actual and present injury to the owner of the 
neighboring soil, no action can lie. The mere possibility or prob- 
ability of future damage is no more a ground for an immediate 
remedy at law than it would be in respect to acts done on the 
surface. The continued exercise of the right itself, as it is not 
necessary to its establishment, so cannot be an infringement 
upon the rights of others. Another circumstance of great 
weight, of course, is the fact that the abuse or excessive exercise 
of such a right is necessarily secret, and amounts to a possessio 
dandestina. See the observations of Bramwell, B., in Solomons 
V, Vintners, 4 Hurl. & N. 602. This being so, there can be no 
prescription of acquisition, which must always be founded on 
acts which are apparent, notorious, and adverse, or as it is ex- 
pressed in the Roman law, nee clam nee precario?' This was the 
ground taken by the Supreme Court of Pennsylvania in Wheat- 
ley V. Baugh, 25 Pa. St. 533, where it was held that the use of 
a spring, which depends for its supply upon percolations through 

^ Citing Lasala r. Holbrook, 4 Paige, 169; Pantin v. Holland, 19 Johnson, 92; 
Farrand v. Marshall, 21 Barb. 407; S. C. 19 Barb. 380; Thurston v. Hancock, 12 
Mass. 221; Bickart r. Scott, 7 Watts, 460; Shreve v. Stokes, 8 B. Mon. 453; 
Charless v, Bankln, 22 Mo. 388; McOuire r. Grant, 1 Dutch, 356; Badcliffe v. 
Brooklyn, 4 Comst. 202. See, also. Hext v. Gill, Law B. 7 Ch. App. 699; S. C. 3 
Moak, 574; Salisbury v. Gladstone, 9 H. L. Cas. 705; Boothby v. Company, 51 
Me. 318; Guest v. Beynolds, 68 111. 478; Bailroad t\ Beany, 42 Md. 117; Beard v. 
Murphy, 37 Vt. 99. 

s Dig. lib. 8^ Tit. 5, Fr. 10; Lib. 39, Tit. 3, Fr. 1; sec. 23, 2 Pardessus Trait, des 
Servitudes; Savigny, Possession, trans, by Perry, 382; Mackeldy Droit Bom. 326. 


the adjoining strata, for the purposes of a tannery bj the owner 
of the land from which it issues, though for more than twenty- 
one years, would not create the presumption of a grant, so as to 
deprive the owner of the adjoining land of the use of his land 
for mining or other lawful purposes, though thereby the spring 
might be destroyed.^ 

^^ There is nothing in this doctrine, laid down in Wheatley v. 
Baugh, to interfere with the rule that an action will lie for 
nominal damages for the infringement of a right which is accom- 
panied by no appreciable injury, because otherwise, if continued 
without interruption for a sufficient time, an easement might be 
acquired by prescription. Besides, there must always be a 
dubious class of acts, for which the owner of land might well be 
permitted to sue ex majori cautela^ and yet which would scarcely 
be defined enough to authorize the presumption of a grant from 
his omission to do so. There can be no doubt, however, that in 
a suitable case relief could be obtained in equity, upon a discov- 
ery of such a working of mines as would certainly, or in reason- 
able probability, endanger the surface of the adjoining land, 
before any actual damage had been sustained." ^ 

In a case in the House of Lords in 1868, it was held that a rail- 
way company was entitled, independently of the special protection 
derived from an act of Parliament, and by way of necessary inci- 
dent to a grant of land to them, to such lateral support from the 
adjacent land of the vendor as might be necessary to uphold a 
bridge constructed by the company for their railway, and that a 
lessee of the vendor was properly restrained from working min- 
erals under the adjacent lands, not the property of the company, 
80 as to affect the stability of the bridge. The. fact that the con- 
veyance of the land was compulsory, under the act, was held not to 
prevent its passing to the company the necessary right of support 
as an ordinary legal incident. Another feature in this case was 
that an old mine under the land had been long flooded with water, 
and the lessee threatened to drain the mine and renew work in 
it. The company claimed that the water in the mine was addi- 

1 See, also, Hoy r. Sterrett, 2 Wattfl. 330. 

•i Farrand v. Marshall, 21 Barb. 409; Mitchell v. Dors, 6 Yes. 147. As to the 
power of the court to grant an inspection of the defendant's mine in such a case, 
see Attorney-General v. Chambers, 12 Beav. 159; Bennitt v. Whitehoase, 2 L. T. 
X. S. 45; Ennor t'. Barwell, 3 L. T. N. S. 170. 


tional support to the surface ; but it was held, in the House of 
Lords, that, although it might be additional support, the com- 
pany had no right to speculate on the continuance of such an 
accidental circumstance as the flooding of the mine, and that 
the lessee ought not to be restrained from withdrawing the 
water from the spaces left in the old workings if such effect 
should be produced by working the colliery in a proper manner. 
It being impracticable to define beforehand the limits within 
which the workings ought to be restrained, an injunction in 
general terms against working so as to produce the particular 
evil apprehended was held properly expressed.^ And it is fur- 
ther held that, although there is no doubt that a man has no 
right to withdraw from his neighbor the support of adjacent 
soil, there is nothing at common law to prevent his draining 
that soil if it becomes necessary or convenient for him to do so. 
An. owner of land has lio right at common law to the support of 
subterranean water, and an adjoining owner has been held enti- 
tled tQ drain his own land, although the result of his doing so 
was to cause a subsidence in the land of the otber.^ 

In Partridge v. Scott, 3 Mees. & W. 220, plaintiflE was pos- 
sessed of two houses — one an ancient one and the other recent, 
built on his land and within his boundary ; and the modem house 
was stated to have been built on land which had been previously 
excavated for the purpose of getting coal. No such statement 
appeared in the case as to the ancient house, and the court would 
not, therefore, intend that it was built originally on excavated 
land, or that the land had been excavated more than twenty 
years. The question was considered precisely the same as to 
both houses. The houses were damaged by coal-mining opera- 
tions in the immediate vicinity. Rights of this sort were held to 
have their origin in grant. If a man builds his house at the ex- 
tremity of his land, he does not thereby acquire any right of ease- 
ment, for support or otherwise, over the land of his neighbor. He 
has no right to load his own soil so as to make it require the sup- 
port of that of his neighbor, unless he has some grant to that efiEect. 

1 EUiot V. North Eastern Railway Co. 10 H. L. Cas. 333; 32 Law J. Ch. 402; 2 
DeGex, F. & J. 423; 30 Law J. Ch. 160; 1 Johns. & H. 145; 29 I^w J. Ch. 808: 6 
Jur. N. S. 817. 

< Popplewell V. Hodkinson, 4 Law R. Ex. 248 ; EUiott v. N. E. B. B. Co. 10 
H. L. Cas. 333: 32 Law J. Ch. 402. 


And 60 it was held, in that case, that if the land on which the 
plaintiff's house was built had not been previously excavated, 
the defendants might, without injury to the plaintiff, have 
worked their coal to the extremity of their own land, without 
even leaving a rib of ten yards, as they did ; and if the plaint- 
iff had not built his house on excavated ground, the mere sink- 
ing of the ground itself would have been without injury. By 
building on ground insufficiently supported, he, therefore, caused 
the injury to himself, without any fault on defendants' part, 
unless at the time, by some grant, he was entitled to additional 
support from the land of defendants ; and in that case it was 
held that none was proved, and none could be presumed.^ 

But where a house was built over twenty years on lands un- 
der which coal-mines had been worked, according to the custom 
of the country, leaving the soil weaker than it would otherwise 
have been, the defendant, knowing this, worked his coal-mines 
under land adjacent — but not immediately adjoining — so as to 
cause the intervening soil to give way, and thus to cause the soil 
under the foundation of the plaintiff's house also to give way, 
the defendant was held liable. The plaintiff was held entitled 
to the support of the soil in its natural state. In this case, 
however, the facts in regard to the right of adjacent support 
were all found by a jury.^ 

A plaintiff, in 1824, built a house on a certain waste, and in 
the following year obtained a grant from the crown of the sur- 
face, excepting mines. The house was about thirty yards from 
a quarry. In 1840, the tenant of the owner of the minerals, 
who claimed a right to take the minerals without making com- 
pensation for damage to the surface, began to get stone from 
under the house, in consequence of which, and of the blasting 
operations, the house became untenantable. In 1853, the de- 
fendant cut away the supports which had been left under the 
house, and the house fell in. The judge left the question to the 
jury, who found that the plaintiff had enjoyed the right of sup- 
port for his house, on the foundations on which it stood, without 

1 Partridge v. Soott, 3 Mees. & W. 220; 7 L. J. N. S. Excli. 101. See Wyatt v, 
Harrison, 1 L. J. N. S. K. B. 237; 3 B. & Ad. 871. See, also, Qulncy t\ Jones, 76 
III. 231; Bichardson v. Company, 25 Vt. 465; Cahill v. Eastman, 18 Minn. 334; 
Moody V. McClelland, 39 Ala. 45. 

« Brown v. Bobbins, 28 L. J. N. S. Exch. 250; 4H. & N. 186. 


interruption, for twenty years. On motion for a new trial, on 
the ground that the judge ought to have told the jury that the 
enjoyment was contentious and not as of right, the court said 
that the question was properly left to the jury.^ 

An action cannot be sustained if the sinking of land be due to 
a superincumbent weight placed upon plaintifE*s premises, unless 
a right was acquired as agaihst the adjoining occupant by grant 
or prescription. Should a defendant dig a gravel pit in his 
premises, close to the line between his own and the plaintifiPs 
fence, and within two feet of the line, on the plaintifiPs land, 
stands a brick house, erected ten years before, and occupied by 
the plaintifE, and by reason of the defendant's excavation, the 
premises being located on the side of a hill, it becomes nec- 
essary for the plaintiff to vacate his house, and to take it down 
to prevent it from sliding into the pit, the defendant is not liable, 
since it was the plaintiff's fault to build so near the line.^ Even 
though a building may have stood in a certain position during 
the period of prescription, if its walls were improperly con- 
structed, so that the building gave way for this cause and not 
by reason of the excavation alone, the plaintiff cannot recover.^ 
As the right to the support of buildings from other buildings 
is not a natural right, where the adjoining buildings were erected 
by different owners, the right of support can be acquired in favor 
of either of the original owners (and their successors in estate) 
only by grant of the other, or by prescription.* If there be an 

1 Rogers v. Taylor, 2 H. & X. 828; 27 L. J. Exch. 173. To tlie point that tlie 
owner of an ancient liouse is entitled to the lateral support of his neighbor's 
land, as well for the house as the surface of the soil itself — see Hunt v. Peake, 
29 L. J. Ch. 785. That when the working of mines, in however careful a man- 
ner, has occasioned the subsidence of the laud of another, although not imme- 
diately adjoining, damages may be recovered in respect of injury to buildings 
thereon erected or enlarged within twenty years, provided their weight did 
not occasion or contribute to the subsidence— see Hamer v. Knowles, 30 L. J. 
Exch. N. S. 102; 6 H. & N. 454; Bibby v. Carter, 28 L. J. Exch, N. 8. 182; 3 H. 
& N. 153. See, generally, Richards v. Harper, L. R. 1 Exch. 199; Moody v. 
McClelland, 39 Ala. 45. 

'^ Thurston i\ Hancock, 12 Mass. 220. The court remarked that the man who 
builds a house adjoining his neighbor's land ought to foresee the probable use by 
his neighbor of the adjoining land, and by convention or contract with his neigh- 
bor, or by a different arrangement of his house, secure himself against future in- 
terruption and inconvenience — as it was, the injury was held to be damnum CLbsque 
ir^uria. (Panton r. Holland, 19 Johns. 92; Lasala i\ Hoi brook, 4 Paige, 169. 
See, also, as to adding a new story, Murchie v. Black, 34 Law J. Com. P. 337.) 

8 Richart i\ Scott, 7 Watts, 460; Dodd v. Holme, 1 Ad. & E. 493. 

* Peyton v. Tendon, 9 Bam. & C. 725. 


intervening building in the block, between the premises of the 
plaintiff and those of the defendant, the pulling down of the 
latter's building does not give a cause of action, especially if the 
plaintiff's building be already in an unsafe condition.^ 

§ 93. Latoral support to ditch property. — In California, 
the court, in th^ case of Clark v. Willett, 35 Cal. 584, expressed 
itself as follows, in regard to the general subject of lateral sup- 
port, as connected with the subject of mining ditches : The gen- 
eral rule undoubtedly is, that a party in possession of the sur- 
face of land is entitled to the lateral support which the adjacent 
soil affords, and the perpendicular support which is afforded by 
the adjacent strata ;, but how far that principle will be enforced 
when the surface is used merely for the purpose of a ditch, in 
which to carry water for the purpose of trade and traffic, which 
possibly can be carried just as well in some other way with but 
a trifling additional expense, and without any detriment to the 
trade in water, has not, so far as we are advised, been deter- 
mined. Whether ditch property in the mineral regions of this 
State, although conceded to be real estate, used as it is for the 
purposes of trade and commerce, is to be regarded by courts of 
equity with the same measure of favor which is bestowed by 
them upon land which is held and cherished by the owner for 
itself, and not merely put to use for an ulterior object, admits 
at least of serious doubt. Such ditches are more or less tempo- 
rary. They are not valuable as land. Their value depends en- 
tirely upon the demand for water, and when the demand has 
ceased, they become worthless. The qualities upon which the 
coYnmon law grounds its peculiar fondness for land, and the 
reasons why courts of equity will interfere to protect it, would 
therefore seem to be measurarbly wanting.^ 

§ 94. Flooding. — One of the cases most frequently cited 
upon this subject is the case of Fletcher v. Eylands, where a 
colliery was flooded by water which escaped from the defend- 
ants' reservoir down some old mine -shafts under the site of the 

1 Solomon v. Vintners' Company. 4 Hurl. & N. 585. 

3 Clark V. Wlllett, 35 Cal. 54S: Humphries t\ Brogden, 12 Q. B. 739; Gibson v. 
Pucbta, 33 Cal. 316. 


reservoir, and through old coal workings under the land inter- 
vening between the plaintifiE 's and the defendants' land ; and 
there was no personal negligence on the part of defendants, but 
their employees, in the construction of the reservoir, had not 
exercised reasonable skill and care with reference to the shafts, 
to provide for the pressure which the reservoir was to bear. It 
was held, in the Exchequer Chamber, that the^ defendants were 
liable,^ and this judgment was affirmed in the House of 

The doctrine of Fletcher r. Rylandd, L. R. 3 H. L. 330, was 
applied, in the Court of Exchequer, to a case where the^defend- 
ants had, for their own purposes, caused water to collect and 
stay in a locality where, by their operations, it would sink into 
their mine, and then get into the plaintifE 's mine and damage it. 
The defendants had artificially caused foreign water to get into 
the plaintifE 's mine — water which could not, and did not, get 
there by natural causes. Though the defendants were not guilty 
of any actual negligence in the management of the mine, and 
although the accident arose from exceptional causes, they were, 
in the Court of Exchequer, still held liable.^ But the relevancy 
of Fletcher v. Rylands was' denied in the Exchequer Chamber, 
and the decision reversed, and a new trial ordered.* And 
in Smith v. Kenrick, 7 Com. B. 615, in the course of the 
ordinary working of the defendants' mine, water percolat- 
ing in the strata had flowed from that mine into the mine 
of the plaintiff. No negligence was proved against the de- 
fendants, and it was held that they were not liable for the 
damage caused. So, the doctrine of Fletcher v. Rylands has 
been held not to apply to the case of water stored in tanks in 
India, which are essential to the welfare and existence of the 
people. These tanks were erected for the purpose of irrigation, 
and were recognized and protected by the Hindoo law, and have 

1 Fletcher v. Rylands, Law B. 3 £ng. & Irish Ap. Gases, 330, affirming 8. G. 30 
Law J. N. 8 £x. 154; reversing 8. G. in Gonrt of Exchequer, 3 Hurl. & G. 773; 
34 Law J. £x. 117, approving Law B. 1 Ex. 285; Lambert v. Bessy, T. Baym. 421 ; 
Smith V. Kenrick, 7 Gom. B. 564; 18 Law J. N. S. G. P. 172; Baird r. Williamson, 
15 Gom. B. N. 8. 376; 33 Law J. N. 8. G. P. 101. 

SLawB.3H. L.330. 8ee Ball v. Nye, 99 Mass. 582. 

s Smith V. Fletcher, Law B. 7 Ex. 305 ; Fletcher v. Bylands, Law B. 3 H. L. 
330; Law B. 1 Ex. 266; 3 Hurl. & G. 774; Smith v. Kenrick, 7 Gom. B. 515. 

* Smith V. Fletcher, Law B. 9 Ex. 64; 8 Moak's Eng. Bep. 510. 


existed from very ancient times.^ Nor does it apply to cases 
where a defendant is permitted to divert, or retain upon his own 
premises, mere surface water from rain or snow, running in no 
defined channel, and which, but for the diversion, might run 
upon the plaintiff's land and benefit him. The resulting damage 
to the plaintiff is damnum absque injuria? In Illinois,^ lowa,^ 
Ohio,^ Pennsylvania,® California,^ Missouri,^ and Massachusetts, 
it would appear that if the defendant has diverted or obstructed 
water, and collected it upon his own land, he is liable for result- 
ing damage to his neighbor. And so if by embankments water 
is thrown back upon plaintiff's land, or the flow increased to his 
damage. It is to be observed, however, that in Massachusetts 
only the later cases favor this doctrine,^ while the earlier ones 
make such injuries virtually instances of damnum absque inju- 
ria^^^ and lay down the doctrine that as to surface water, or 
water flowing through drains and ditches, as contradistinguished 
from streams, the upper proprietor may obstruct it^ and cause it 
to flow back upon the lower ; and that the right of a person to 
the free control of his own land above, upon, and beneath the 
surface, cannot be restrained by any consideration of injury to 
others below ; and which may be occasioned by the flow of sur- 
face water in consequence of the lawful appropriation of land 
by its owner to a particular use or mode of enjoyment. Such, 
also, seems to be the doctrine in New Hampshire and Wisconsin.^^ 

1 Madras Ry. Co. v. The Zemindar, 30 I.. T. X. S. 770; S. G. L. R. 1 India Ai>- 
peal Cases, 364. To the same effect, Nichols c. Marsland, Law R. 10 Ex. 255; S. 
C. 14 Moak, Eng. R. 538; Crompton v. Lea, Law R. 19 Eq. 115; S. C. 11 Moak, 719. 

'■* Curtis V. Ayrault, 47 N. Y. 73; Livingston r. McDonald, 21 Iowa, 160; Luther 
V. Company, 9 Cush. 171; Gannon v. Hargadon, 10 Allen, 106; Broadbent v. 
Ramsbotham, 11 Ex. 002, 36J). 

SGilham v. Company. 49 111. 484; Gormley t\ Sanford, 52 111. 158. 

* Livingstone v. McDonald, 21 Iowa, 160. 

5 Tootle f. Clifton, 22 Ohio St. 247. 

6 Martin r. Riddle, 26 Pa. 415; Kaufman t'. Griesemer, 26 Pa. 407. 

7 Ogbum V. Connor, 46 Cal. 346. 

s Laumier v. Francis, 23 Mo. 181. 

9 Shipley v. Fifty Associates, 106 Mass. 194; Wilson v. New Bedford, 108 Mass. 
261: Ball t'. Nye, 99 Mass. 582; Gray v. Harris, 107 Mass. 492. 

10 Gannon v. Hargadon, 10 Allen, 106; Parks r. Newburyport, 10 Gray, 28; 
Flagg V, Worcester, 13 Gray, 601; Dickinson r. Worcester, 7 Allen, 19. 

"Swett r. Cutis, 60 N. H. 439; Bassett v. Company, 43 K. H. 569; Brown v, 
Collins, 53 N. H. 433; Hoyt v. Hudson. 27 Wis. (556; Pettigrew v. Evansville, 25 
Wis. 223. Also in Maine— Morrison i'. Bucksport, 67 Me. 353; and Connecticut- 
Grant V. Allen, 41 Conn. 156. 



In a New York case it is said that if one build a dam upon his 
own premises, and thus hold back and accumulate the water for 
his benefit ; or if he bring water upon his premises into a reser- 
voir, in case the dam or the reservoir give way, and the lands 
of another are flooded, it is damnum absque ir^ria^ unless neg- 
ligence be shown. In that particular case a steam boiler on the 
defendant's premises exploded, damaging some of plaintiff's ad- 
jacent buildings, and it was held the plainti£E could not recover 
without evidence of negligence.^ The American authorities can- 
not be reconciled. It is said that every man has a right to pro- 
tect his premises against the fall of rain or snow, although 
incidental injury may result to his neighbor by so doing. He 
may put proper eaves, troughs, or gutters upon his building 
for leading o£E the water from his own ground, and if he keeps 
them in order, and is guilty of no negligence, the adjoining pro- 
prietor must bear the damage resulting from extraordinary or 
accidental circumstances, so long as no one is in fault.^ The 
extreme hardship of having a drainage across a valuable town 
lot might lead to some modification of the doctrine.^ It seems 
to be admitted that the public may lawfully improve streets and 
public grounds, though the effect may be to cast falling or 
surface water upon adjoining grounds.* Well-defined natural 
water-courses must not be injuriously affected; but these do 
not include the water flowing into the hollows or ravines in land, 
and which is the mere surface water from rain or melting snow, 
and is discharged through them from a higher to a lower level, ' 
the hollows being at other times destitute of water.^ But in the 
case of gorges and narrow passages in hilly or mountainous re- 
gions, perhaps the case may be different.® The general subject, 

^Losee v. Buchanan, 51 N. Y. 476; Bellinger v. Company, 23 N. Y. 47. See, 
also, Tapham v. Curtis, 5 Vt. 321; Todd v. Cochell, 17 Cal. {^7; Everett v. Com- 
pany, 23 Cal. 225; Sheldon v. Sherman, 42 N. Y. 4S4. But see, contra, Selden v. 
Company, 24 Barb. 362; Hay v. Company, 2 Comst. 159; Pixley v, Clark, 35 N. 
Y. 520. 

« Underwood i'. Waldron, 33 Mich. 232. 

»See Vanderwiele v, Taylor, 65 N. Y. 341. 

* Greeley v. Company, 53 Me. 200; Martin r. Riddle, 26 Pa. 415; Luther v. Com- 
pany, 9 Cush. 171. See Hoagland v, Sacramento, April 30th, 1877, Supreme 
Court of California, unreported. 

• Hoyt V. Hudson, 27 Wis. 666. 

>Ibid. and Bowlsby v. Spear, 31 N. J. 351. See Barnes v. Sabron, 10 Nev. 217; 
Ashley v, Wolcott, 11 Cush. 192. 



unconnected with mining operations, will be somewhat further 
discussed in the next chapter. A few more mining cases will 
now be reviewed. 

Where a declaration stated that plaintiffs and defendants were 
owners of adjacent mines; that defendants had trespassed on 
plaintiffs' mine, and had carried away a quantity of coal ; that 
water had arisen in the defendants' mine, against which, but for 
the trespass, the coal would have been a sufficient barrier ; that 
thereupon it became the duty of the defendants to prevent the 
water in their mine from flowing into the plaintiffs' mine, yet 
the defendants neglected their duty, whereby the water flowed 
into plaintiffs' mine and prevented them from working the same, 
and that the removal of the barrier was irreparable ; these things 
were held to constitute a cause of action.^ 

Where the owner of a coal-mine excavated as far as the bound- 
ary, (which he was by custom entitled to do) and continued the 
excavation wrongfully into the neighboring mine, leaving an 
aperture in the coal of that mine, through which water flowed 
and damaged it, it was held, in the Court of Queen's Bench, 
that the party excavating was liable in trespass for breaking 
into the neighboring mine, but not in* case for omitting to close 
the aperture, notwithstanding the continuing damage.^ 

The proprietors of a coal-mine had so worked their mine, by 
opening cuttings to draw off the water therein, that they had 
caused the neighboring and adjoining mine of the plaintiffs to 
be flooded, and from such openings the defendants had also ab- 
stracted coal from their neighbors' mines, and sold the same for 
their own benefit. An injunction was granted to restrain fur- 
ther proceeding, and ft decree was allowed, compelling defend- 
ants to stop up the existing openings and cuttings, restraining 
them from making further openings, anil for compensation for 
damage sustained, and for an account of the value of the coal 
abstracted at its market value.^ 

In an early case in California, a party brought an action for 
damages to his mining claim, sustained by reason of the break- 

1 Firmstone r. Wlieeley, 2 Dowl. & L. 203 ; 13 Law J. N. S. Ex. 361. And see 
Locust Co. V, Oorrell, 9 Phila. 247. 
a Clegg V. Deardon, 12 Q. B. 576; 17 L. J. N. 8. Q. B. 233. 
« Plant r. Stott, 21 L. T. B. 106. 


ing away of a portion of defendant's ditch, owing to the care- 
less manner of its construction, and the consequent overflowing 
of plaintiff's claim. The location of the claim was subsequent 
to the construction of the ditch. The case turned on the ques- 
tion of negligence, and it was held that there was none, and the 
breaking of the ditch was purely accidental. 

The court said : ^^ The important fact having been admitted 
that neither of the parties claim as holders of the soil, but sim- 
ply by virtue of location or appropriation, it becomes necessary 
to ascertain what rights the plaintiffs, who were subsequent lo- 
cators, acquired against the defendants. Some of the earlier 
English authorities recognize the doctrine that a person may 
(even as between owners of the soil) construct or continue what 
would otherwise be an actionable nuisance, provided that at 
the commencement of it no person was in a condition to be in- 
jured by it, or in other words, that mere priority as between 
owners of the soil gave a superior right. If a person after- 
ward, by building or otherwise, put himself in a situation to be 
injured by such structure, it was termed * coming to a nuisance.' 

*'*• This doctrine has long since been exploded on the most ob- 
vious principles of sound reason. The right of the owner of the 
soil to the free use and enjoyment of the same is held to exist 
anterior to any erection that may be made by an adjoining pro- 
prietor, and in such cases the maxim sic utere tuo ut alienum non. 
Icedas applies. 

" It will be observed that the reason of the rule is founded on 
the ownership of the soil, and that, as between proprietors, the 
same rights or privileges are supposed to exist (except in some 
few instances) ; but in a case like the present, where neither 
party claims an ownership in the soil, and all the rights they 
possess relate back, or are acquired at the date of their respect- 
ive locations, the reason of the rule ceases, and the maxim qui 
prior eat in tempore^ potior est in jure^ as applied by this court 
to cases involving disputes growing out of mining claims, would 
seem more applicable. 

" In fact, any other rule would allow a malevolent person to 
make a trespass whenever he pleased, by settling along the line 
of a water-ditch or canal where he supposed, from its location or 
construction, it was most likely to give way. There is no doubt 


that the owners of a ditch would be liable for wanton injury or 
gross negligence, but not for a mere accidental injury where no 
negligence was shown. In such cases, the maxim ^ sic utere^'' 
etc., must be construed with reference to the rights of all the 
parties concerned, and no man can be deprived of the due enjoy- 
ment of his property and held answerable in damages for the 
reasonable exercise of a right.'' ^ 

And so where the plaintifEs owned mining claims located 
in the bed of a creek, and the defendants owned claims situ- 
ated on a hill in the vicinity. The refuse matter washed from 
the claims of the defendants was deposited upon the claims 
of the plainti£Es to such an extent as to render the working 
of them impracticable. The plaintiffs' claims were first lo- 
cated, and an action was brought for damages, and for a 
perpetual injunction. The maxim of qui prior est in tem- 
pore^ potior eat in jure^ was held to apply. As the claims 
of the plaintiff were valuable only for the gold which they con- 
tained, and the enjoyment of them was in the use necessary to 
obtain possession of the gold, it was held that to interrupt the 
use of them for that purpose was to take away the opportunity 
to enjoy them, and to defeat the object for which they were lo- 
cated and taken possession of. This, it was held, could not be 
legally done. The defendants were entitled to use their claims 
in a lawful manner, but no use could be considered lawful which 
precluded the plaintiffs from the enjoyment of their rights. 
Esmond v. Chew, 15 Cal. 137, was held not to conflict with 
these views.^ In Esmond v. Chew, the true rule was said to be 
that' each person mining in the same stream is entitled to use, in 
a proper and reasonable manner, both the channel of the stream 
and the water flowing therein ; and where, from the situation of 
different claims, the working of some will necessarily result in 
injury to others, if the injury be the natural and necessary con- 
sequence of the exercise of this right, it will be damnum absque 
injuria^ and will furnish no cause of action to the party injured. 
The reasonableness of the use is a question for the jury, to be 
determined upon the facts and circumstances of each particular 
case.^ And where owners of a mining claim suffered loss by rea- 

iTenney v. Miners' Ditch Co. 7 Cal. 335. « Logan v. DriscoU, 19 Cal. 623. 

• Esmond v. Chew, 15 Cal. 137. 


son of the breaking of defendants' dam at a high stage of jirater, 
and it was found that the dam was '^ well built, and constructed 
in a good and workmanlike manner, and of sufficient strength 
and capacity to contain the amount of water within it," and 
that no negligence on the part of defendants was shown, and 
that they used that reasonable care and diligence which prudent 
men would have used in the erection and care of the dam, the 
defendants were held properly entitled to judgment.^ 

An owner of a mine at a higher level than an adjoining mine 
has a right to work the whole of his mine, in the usual and 
proper manner, for the purpose of getting out the minerals in 
any part of his mine ; and he is not liable for any water which 
flows by gravitation into such adjoining mine from works so con- 
ducted. But he has no right, by pumping or otherwise, to be an 
agent in sending water from his mine into the adjoining mine.^ 

§ dS. Upper and lower leveL — In one of the lower courts 
in Pennsylvania, it was said that where there are two mining 
operations — one owner working on the upper level and one on 
the lower level of the same vein — ^the owner of the upper level, 
operating in the most approved method and with care, is not 
required to control the natural flow of the water downward, and 
may work his coal out down to his line, and the maxim of the 
common law, sic utere too ut cUienum non loedas^ applies. The 
owner of the subjacent level owes a servitude, and must leave a 
pillar of coal to support the gangway and keep out the water 
from the level above. 

Adjoining owners, on the same level of the same. vein, owe no 
special duty to each other. When, however, the owner of the 
superjacent land has created a servitude upon his land, in favor 
of the subjacent owner, such as a right to drive an airway 
through his works, and to connect with the surface, such owner, 
after he has worked all his coal out and is about to abandon his 
workings, must give reasonable notice of this ; and on failure so 

1 Everett v. Hydraulic Flume Tunnel Co. 23 Cal. 225; Hofihnan r. Tuolumne 
Water Co. 10 Cal. 113; Wolf v. St. Louis Independent Water Co. Ibid. Ml. 

* Baiid V. WillUmaon. M Com. B. N. S. 376; 33 Law J. Com. P. 101; 12 Week. 
B. ISO; 9 L. T. N. 8. 412; 10 Jur. N. S. 152. See, also, Carstairs v, Taylor, Law B. 
6 Ex. 217; Boss v. Fedden, Law B. 7 Q. B. 661. See Marshall v. Cohen, 44 Qa. 
4S9; Doupe t;. Genin, 40 K. Y. 119. 


to do, equity will restrain him from permitting the water to fill 
up, if by 80 doing it will destroy the easement, the owner of the 
dominant tenement to be at the expense of pumping the water 
until the injury can be remedied. Reasonable notice is relative, 
and depends upon the work to be performed. A party having 
an easement on the land of another may go upon the land for 
the purpose of the enjoyment of such easement to its fullest 
extent — either to construct, or repair, or secure it from danger 
— doing as little damage as possible, and responsible for that dam- 
age, for the grant of a privilege carries with it everything nec- 
essary for its enjoyment.^ 

In England, it has been held that the holder of a mining lease 
from the crown is not liable to make compensation for the with- 
drawal, by percolation into his mine, of water which would 
otherwise have flowed into, or, having flowed into, would have 
been retained in, the wells and springs of the superjacent land. 
This decision went upon the ground that the crown was, in that 
particular case, possessed of the mines as of its own original 
title in the soil, and had the right to the use of all waters found 
thereon, and percolating by natural processes into the mines 
when opened.^ 

§ 96. Mining operations regarded as nuisances. — It 

has been said that, in actions brought for nuisance, a difference 
exists between those alleged nuisances which produce material 
injury to property, and those brought on the ground that the 
alleged nuisance is productive of sensible personal discomfort. 
In some cases, a submission is required to that amount of 
discomfort which may be necessary for the legitimate and 
free exercise of the trade of their neighbors, which would not 
be required in circumstances the immediate result of which 
is sensible injury to the value of property. And so where the 
basis of an action was the injury done to certain trees and 
shrubs by reason of the noxious vapors arising from smelting- 
works, it was held maintainable.^ 

^Philadelphia & Reading Coal and Iron Co. v. Taylor, Court of Common 
Pleas, Schuylkill Co. Penn. 7 Pac. Law Rep. 127. 

^Ballacorkish Silver, Lead & Copper Mining Co. v. Harrison, Law Bep. 5 
Priv. C. C. 49; 8 Moak. Eng. R. 88; 13 Am. Law R. 592. 

3 St. Helen's Smelting Co. u. Tipping, 35 L. J. N. S. Q. B. 66 ; 2 Best. & S. 608 ; 
Law Rep. 1 Ch. 66 ; 116 Eng. C. L. lOlKJ. 


Works likelj to become a nuisance may be erected and car- 
ried on without objection, the owners of adjoining estates ac- 
quiescing ; yet this does not preclude them, when injury arises, 
from objecting to an extension of the works, or from pursuing 
their legal remedy to recover damages for injury sustained ; as 
where works were originally established for the manufacture of 
spelter or zinc, and were altered to copper-works, and the fur- 
naces increased in number from seventeen to twenty-six.^ 

In a case in Pennsylvania an injunction was sought to restrain 
the defendants from pumping water from their mines and per- 
mitting it to flow into a creek, and polluting the water, and to 
restrain them from depositing coal, coal-dirt, slate, or other 
debris of the mine in such a position that it was subject to be 
carried into the stream above the dam of plaintiffs. The court 
said that, where large and expensive works are sought to be 
stopped, not on account of direct or willful encroachments, but 
for something incident to a lawful employment, it should be 
made clearly to appear that it is a case for equitable interven- 
tion ; that there is no adequate remedy at law, and that, if not 
enjoined, irreparable injury or mischief will ensue to the party 
complainant. Where a chemical analysis showed that the 
water in the vicinity of the plaintiff 's premises was scarcely 
affected, and it further appeared that those premises were five 
miles below the vicinity of the mining operations, an injunction 
was refused.* 

§ 97. Frandnlent working. — In Powell «. Aiken, 4 Eay 
& J. 848, a trespass had been committed on plaintiff's mine, 
and an air-course and level roads made through it underground, 
to connect adjoining collieries in mortgage to defendants, and 
large quantities of plaintiffs' coal were thereby gotten and re- 
moved without their knowledge. The court held that the mort- 

1 Bankart v. Houghton, 2S Law J. K. 8. Gh. 473 ; 27 Boav. 426. 

< New Boston Goal M. Go. o. Pottsville Water Go. 54 Penn. 164. See, also, 
Bichaxds' Appeal, 57 Penn. 105. See ntunerons authorities collected In the 
briefs of counsel. See generaUy, as to mining operations regarded as nuisances, 
Hays V, Gohoes Co. 2 Comst. 150. Injuries from blasting— negligence amount- 
ing to a criminal offense— Beg. v. Mutters, 10 Cox. G. C. 6. Koise from iron- works 
—Elliottson t), Feetham, 2 Bing. N. G. 134. As to the maintenance of a nui- 
sance in the shape of smelting works, see Boss v. Butler, 4 C. B. Qreene, 19 N. 
J. Eq. 294. 

D. A. I.— 10. 


gagees, defendants, could not be made accountable for any por- 
tion of the coal removed by their mortgagor while they allowed 
him to remain in possession, notwithstanding the proceeds of 
the coal, so wrongfully removed by him, had found their way 
week by week, but without notice of the fraud, into defendants' 
hands ; and notwithstanding they continued the use of the air- 
course and roads after taking possession, and retained in their 
employment, as manager of the collieries, the person by whose 
agency the fraud had been perpetrated. The court would not 
give plaintiffs compensation, in respect of consequential injury, 
by reason of large portions of their coal being rendered unwork- 
able and useless to them, but held that the mortgagees could 
not be allowed to retain the user of the air-course or roads, al- 
though the continuance of that user might be no special injury 
to the plaintiffs, but that, not having themselves made such 
apertures, they could not be ordered to fill them up. All the 
proceeds having been traced to the mortgagees, and no portion 
retained by the agent, the latter could not, in a court of chan- 
cery, be made personally chargeable for the value of the coal 
removed, notwithstanding his own fraudulent conduct in the 

§ 98. Prior possession of lands adjoining mines — 
Rights resulting therefrom.— The case of Gribson r. Puchta^ 
is illustrative of the greatest extent to which the courts of Cali- 
fornia went in protecting the possession of the agriculturist as 
against the miner. It was an action instituted by the miner to 
restrain a person in possession of public land, for agricultural 
purposes, from running water upon the mining claims of the 
former. The title of both parties was derived from possession 
and appropriation, the fee being in the Government. The older 
possession, although for agricultural purposes, was held superior 
to the younger, although for mining purposes. There was no 
attempt on the part of the miners at any entry upon the posses- 
sion of the settler ; but the mining claims were simply adjacent 
to, not upon nor in the lands of the latter. The water was 

1 Powell V. Aiken, 4 Kay & J. 343. See, generally, Powell v. Rees, 7 Ad. & 
E. 426; 8 Law J. N. S. Q. B. 47. 


used for the purposes of irrigation. The damage caused to the 
mining possession was virtually held to be damnum, ah^que in- 
juria. The miners'* rights were said to depend upon the com- 
mon-law rules applicable to adjoining land-owners. The settler 
having a clear right to irrigate his land, and his use having 
been reasonable, no negligence or wanton exercise of the right 
being shown, the miner was held to be without remedy.^ 

§ 99. Right of oldest locator. — The owner of a mining 
claim comprising the bed of a ca&on may erect dams across the 
bed of the cafion for the purpose of enabling him to work the 
same, even if thereby mining claims on the banks of the caQon 
belonging to others are flooded, provided the claim in the bed of 
the cafion is the oldest location ; and in such a case the injury 
sustained by the owner of the bank claim is damnum absque 
injuria. A declaration of the owner of a canon claim, before 
building the dam, that he will put in a dam that will flood the 
claim on the bank of the ca&on, is consistent with the utility or 
necessity of the dam in working the cafion. It is not the prov- 
ince of a court to question the judgment of the owner of a min- 
ing claim as to the manner in which he shall work his claim, so 
that the working does not interfere with prior rights acquired 
by others.^ 

1 Gibson v. Pachta, 33 Cal. 310. ^ stone v. Bumpus, 46 Cal. 218. 





$ 100. Diversion of subterranean streams, hidden springs, and percolating 
waters— 'Injuries from mining operations to adjoining lands. 

§ 101. Subterranean waters — Percolations diverted by well-digging. 

§ 102. Injuries to wells, springs, etc., by mining operations in adjoining soil. 

§ 103. Rights of owners of land in subterranean streams and percolations— 
Water belonging to the soil. 

§ 104. Reasonable use of surface streams. 

§ 106. Pollution by sewage, etc. 

§ 106. Injuries to artificial water-courses. 

§ 107. Artificial \^ater-courses — ^Two classes — Distinctions. 

§ 106. Increasing the flow. 

§ 100. Diversion of snbtorranean streaxna, hidden 
springs, and percolating waters — Injuries from mining 
operations to adjoining lands. — An owner of land who, in 
mining ore therein, drains water from land of an adjoining 
owner, thereby destroying a spring upon it, is not liable in dam- 
ages therefor if there be no evidence of malice or negligence. 
A land-owner may not negligently or maliciously divert even 
an unknown subterranean stream, to the damage of a lower pro- 
prietor, but he may drain, mine, or quarry, though in so doing 
he interferes with the flow of water in hidden, unknown, under- 
ground channels. This matter has been fully discussed in a se- 
ries of leading cases upon the subject in England and America, 
and we shall now review these decisions as containing a full ex- 
position of the law upon the subject. In Pennsylvania, an action 
on the case was brought for diverting or destroying a spring of 
water on plaintiff's land. The plaintiff owned a tract of land 
upon which he and his family resided ; on the land adjacent to 
his dwelling there was a large spring of water, which was suffi- 
cient to supply all the uses of his family, and was never known 
to go dry or be diminished in volume until 1860. In 1847, de- 
fendants bought an adjoining tract, for the purpose of mining 


iron ore, about 380 feet distant from the spring. In about 1851 
thej dug a pit to mine iron ore^ and mined continually after- 
wu'd. They commenced by pumping the water out of the pit 
with horse-power. In 1858 or 1859 they procured an engine 
with steam -pump, and in the fall or spring of 1860 two steam- 
pumps were put up, and when the steam power was in full oper- 
ation plaintiff's spring became entirely dry. The spring was 
affected and diminished in a short time after they commenced 
pumping, but neither the horse-power nor the first steam-pump 
diminished the spring. It was only when the largely-increased 
power was brought into play that the spring was affected. The 
pit was forty feet deep, and about forty yards across ; the bottom 
was an oval, fifty by twenty feet ; within forty-eight hours after 
the pumping ceased the spring filled, and the water in the spring 
was at its natural flow. It required from six to eight feet of 
water in the bank before the spring flowed. 

There were three distinct streams coming into this pit : one 
from the northwest, four or five inches in diameter. Plaintiff 's 
spring lay southeast from that. The volume of water pumped 
out of the pit exceeded largely the natural flow of plaintiff's 
spring. Other springs were similarly affected by the pumps of 
defendant. A number of coal-pits were dug in that vicinity — 
eighteen or twenty — ^none of which, however, affected the water 
of this spring. 

The opinion of the court by Strong, J., is interesting and in- 
structive, and is as follows : '^ Confessedly the absolute domin- 
ion of a proprietor over his land to the center of the earth, is 
restrained by the maxim *• sic utere tuo ut alienum non loedas^ 
but what is an injury? The rightful use of one's land may 
cause damage to another, without any legal wrong. An act 
done causing damage which the law will redress, must not only 
be hurtful, but wrongful. There must be damnum et injuria^ 
an act not merely hurtful, but an infringement of another's 
right. The plaintiff in this case cannot therefore recover, unless 
the acts of which he complains were in violation of some rights 
which he had upon the lands of the defendants. That an in- 
ferior proprietor has a right to the uninterrupted flow of the 
water in a surface water-course leading to his land over the land 
of an adjoining proprietor, is a familiar principle ; but he has 


no such right to an unknown subterranean stream which feeds 
his spring or flows out upon his land. For any flowage in such 
a stream, he has, in ordinary cases, no servitude upon the land 
of his neighbor, at least he has no natural right to enforce such 
a servitude. After the full discussion which this subject re- 
ceived in Wheatley v, Baugh, 1 Casey, 528, little remains for 
us now to add. In that case it was ruled that where, a spring 
depends for its supply upon filtrations or percolations of water 
through the land of an owner above, and in the use of the land 
for mining or other lawful purposes the spring is destroyed, 
such owner is not liable for the damage thus caused to the pro- 
prietors of the spring, unless the injury was occasioned by malice 
or negligence. To such percolations or filtrations, then, the in- 
ferior owner has no right. This was all that was necessary to 
the decision of the case. 

• " In the opinion delivered by this court, it was said, indeed, 
that inferior proprietors may have rights in subtenranean streams, 
and those were instanced that in limestone regions often pursue 
their course in great volume and power, and then emerging from 
their caverns furnish power for machinery, or supply towns and 
settlements with water for all the purposes of life. To say that 
such streams might be obstructed or diverted, merely because 
they run through subterranean channels, would be, said the 
court, to forget the rights and duties of man in relation to flow- 
ing water. Underground currents of such a description are 
exceptional in their nature, and the same reason exists for hold- 
ing that a lower proprietor has a right to insist upon their unin- 
terrupted flew, as exists in the case of water-courses on the sur- 
face. Their existence and their course are generally known. 
If, therefore, the owner below has any rights in them, they are 
perceptible, and the owner of the land through which they pass 
may, in most cases, have the fullest use of his property without 
disturbing them. What was said upon these exceptional cases 
had been previously, though more guardedly, said in Dickinson 
V. The Grand Junction Canal Company, 9 Eng. Law & Eq. 521, 
a case decided in the English Court of Exchequer, where a 
distinction between water running on the surface and sub-sur- 
face streams was asserted, but the court said : *• If the course of 
a subterranean stream were well known, as is the case with many 


which sink underground, pursue for a short space a subterran- 
eous course, and then emerge again, it never could be contended 
that the owner of the soil under which the stream flowed could 
not maintain an action for the diversion of it, if it took place 
under such circumstances as would have enabled him to recover 
if the stream had been wholly above ground.' Throwing out 
of view for the present such exceptional cases, there is a well- 
marked distinction between the flowage of water in surface and 
sub-surface channels. 

" A proprietor of land may, in the proper use of his land for 
mining, quarrying, building, draining, or any other useful pur- 
pose, cut o£E or divert subterraneous water flowing through it to 
the land of his neighbor, without any responsibility to that 
neighbor. Some of the grounds for the distinction are clearly 
pointed out in Acton v. Blundell, 12 M. & W, 324, and others 
may be mentioned. They are that in case of an underground 
supply to a spijng or well, or a stream emerging upon land of a 
lower proprietor, the water does not flow openly in the sight of 
the owner of the soil under which it passes ; that there is there- 
fore no reason for implying consent or agreement between the 
proprietors of the adjoining lands beneath which underground 
currents exist, which is one of the foundations upon which the 
law as to surface streams is supposed to be built ; and that for 
the same reason no trace of positive law can be inferred. Again, 
if the lower proprietor has a right to the undisturbed flowage 
of water through subterranean passages in his neighbor's land, 
he has the power of preventing that neighbor from using the 
water in his own soil, for he cannot use it and return it to its old 
passage-way, which he may do in the case of a surface stream. 
Such a right, if it exists, also exposes the upper proprietor to 
the hazard of incurring fruitlessly heavy expenditures in efEorts 
to improve or use his land, since he can have no knowledge, until 
after his outlay has been made, that his contemplated use will 
interfere with any rights or interests of an adjoining owner. A 
surface stream cannot be diverted without knowledge that the 
diversion will affect a lower proprietor. Not so with an un- 
known subterranean percolation or stream. One can hardly have 
rights upon another's land which are imperceptible, of which 
neither himself nor that other can have any knowledge. No 


8uch right can be supposed to have been taken into considera- 
tion when either the upper or lower tract was purchased. The 
purchaser of lands on which there are unknown sub-surface cur- 
rents, must buy in ignorance of any obstacle to the full enjoy- 
ment of his purchase indefinitely downwards, and the purchaser 
of lands on which a spring rises, ignorant whence and how the 
water comes, cannot bargain for any right to a secret flow of 
water in another's land. It would seem, therefore, most unrea- 
sonable that the latter should have a right to prevent his neigh- 
bor from enjoying his own land in the ordinary way, either 
by digging wells, cellars, drains, or by quarrying and mining. 
A further reason for holding that there is no such right is found 
in the indefinite nature and great extent of the obligation which 
would be imposed if the right existed. Instances have occurred 
where excavations have had the efi^ect of draining land, although 
at the distance of several miles. (Gale & Wheatley on Ease- 
ments, 178.) Even in the case before us, the mining pit of the 
defendants is more than three hundred feet distant from the 
plaintiff's spring. These appear to us very sufiUcient reasons 
for distinguishing between surface and subterraneous streams, 
and denying to inferior proprietors any right to control the flow 
of water in unknown subterranean channels upon an adjoiner's 
land. They are as applicable to unknown sub-surface streams 
as they are to filtrations and percolations through small inter- 
stices. Neither can be defined water-courses, though they may 
be definable. 

*^ The distinction thus founded in reason is recognized by the 
law. The civil law adopted it. Thus, in Dig. Lib. 39, Tit. 8, Fr. 
1, sec. 12, De aqua et aquce pluvim arcendce : ' Denique Mar- 
cellus scribit : Cum eo, qui in suo f undo f odiens vicini f ontem 
averterit, nihil posse agi. Nee de dolo actio est ; et sane non 
debet habere, si non animo vicino nocendi, sed suum agrum me- 
liorem faciendi id fecit.' The common law is the same. 

" The leading case of Acton v. Blundell, 12 Mees. & W. 324, 
already referred to, asserts it distinctly ; and the distinction be- 
tween surface and underground waters, which was there drawn, 
was recognized in Dickinson v. The Grand Junction Canal Co., 9 
Eng. L. & E. 520, as well as in our own case of Wheatley t?. 
Baugh. So in Ellis v. Duncan, 21 Barb. 230, it was ruled that 


the owner of a farm may dig a ditch to drain his land, or open 
and work a quarry upon it, although by so doing he interrupts 
one of the underground sources of a spring on his neighbor's 
land; and it was said : ^The rule that a man has the right to 
the free and absolute use of his property, so long as he does not 
directly invade that of his neighbor, or consequentially injure his 
perceptible and dearly defined rights^ is applicable to the inter- 
ruptions of the sub-surface supplies of a stream by the owner of 
the soil, and the damage resulting from it is not the subject of 
legal redress.' 

^^ The same thing was decided in Eoath v. Driscoll, 20 Conn. 
633, 642 ; and in Brown v. lUius, 27 Conn. 84, it was more em- 
phatically ruled, and the court adopted the mode of expression 
used by one of the counsel in Acton v. Blundell, saying, in re- 
gard to subterranean streams and currents : ^ There is not any 
JUS cUienum on the part of the owner of the other lands, and 
therefore the maxim sic utere tuo ut cUienum non Icedas does 
not apply.' Nor are there any well-considered decisions which 
are inconsistent with these. Whetstone v. Bowser, 6 Casey, 69; 
was a case where the stream diverted was partly on the surface 
and partly underground. It was a well-known stream, and the . 
diversion complained of was on the surface. In Smith v. Adams, 
6 Paige, 433, the stream which supplied the spring was known, 
and the water was taken from a place just above the point where 
it had emerged, not for the enjoyment of the land where it 
had flowed, but for the use of another tract at some distance 
from it. 

" We think, therefore, that the learned judge of the Common 
Pleas misapprehended what had been ruled in Wheatley v. Baugh. 
The defined water-courses there spoken of, which a man may not 
divert to the hurt of an inferior proprietor, are not the hidden 
streams of which the owner of the soil through which they pass 
can have no knowledge until they have been discovered by ex- 
cavations made in the exercise of his rights of property. There 
are known streams to which, if the lower proprietor has any 
rights, they are perceptible, and require no sub-surface explora- 
tion before their course can be defined. We are not, however, 
to be understood as intimating that an owner may maliciously or 
negligently divert even an unknown subterranean stream to the 


damage of a lower proprietor. But in the enjoyment of his land 
he may cut drains, or mine, or quarry, though in so doing he 
interfere with the flowage of water in hidden, unknown, under- 
ground channels. 

'' Applying these principles to the present case, we are con- 
strained to say we see no evidence of malice or negligence 
on the part of the defendants. Mining on their land, as they 
did, was no more than the exercise of their legal rights. If, in 
so doing, they interrupted an underground stream which sup- 
plied the plaintiff 's spring, it was damnum absque injuriOj and 
there was no evidence of the existence of such a known, well- 
defined water-course underground in the land of the defendants 
as will entitle the plaintiff to maintain an action against them 
for diverting it by their mining operations, and thus destroying 
the spring." i 

§ 101. Subterranean waters — ^PercolationB diverted by 
digging virells, etc. — ^If a person digs his well on his own land, 
in good faith, for the obtaining of water for his own domestic 
uses, he is not liable for any damage which incidentally results 
to the plaintiff by reason of thereby diverting the water which 
had been accustomed to percolate or flow, in an unknown sub- 
terranean current, into the plaintiff's spring. Thus an action 
of case was brought against the defendant for digging a well 
on his own land, whereby the waters of a living spring upon 
that of the plaintiff were diverted.^ Neither party supposed 
the well would have that effect when it was dug. The plaintiff 
supplied his house and barn by pipes from his spring, the water 
flowing naturally into tanks. In sinking his well the defend- 
ant's workmen struck a vein of water that filled the well and 
overflowed the yard ; to dispose of the water, a drain was made, 
a foot or two below the top of the well, so as to carry the over- 
flow to the street gutter — ineffectual attempts having been made 
in various ways to check the flow. The result was, that the 
plaintiff 's natural supply was cut off, and he had to pump into 

^Haldeman v. Bruckhart, 45 Pa. 514. See Cole Silver M. Co. v. Virginia Water 
Go. 1 Sawyer, 470. As to underground ditches, see Livingston v. McDonald, 21 
Iowa, 160. 

> Chase v. Silverstone, 62 Me. 175. See, also, Morrison v. Company, 67 Me. 358. 


his spring. This spring was shown to have existed there for 
thirty or forty years at least. 

Virgin, J., delivering the opinion, said : " This court has had 
frequent occasion to enunciate the rules regulating the relative 
rights and liabilities of riparian proprietors, and apply the prin- 
ciple of ^ reasonable use ' to the peculiar circumstances of each 
particular case ; and in two cases — ^Lansil v. Bangor, 51 Maine, 
621, and Grreely v. Maine Cen. R. R. Co. 53 Maine, 200 — have 
determined the rights and liabilities of land-owners in relation 
to mere surface water. But this is the first case which has 
called upon us to declare the law which governs proprietors of 
adjacent lands in relation to sub -surface waters not gathered 
into a fixed, known channel. 

** Is a land-owner, who, by digging a well in his own land for 
his own domestic purposes, thereby diverts underground waters 
and thus prevents them from percolating into a coterminous 
proprietor's spring, to the owner's damage, liable for such dam- 
age ; or does such a diversion fall within one of those large and 
distinct classes of cases cropping out over the whole domain of 
^ wrongs independent of contract,' in which appreciable damage 
and loss are incidentally occasioned to an individual by the act 
of another, and yet no redress is given him by the law, and to 
which the law applies the phrase — ' damnum absque injuria ' ? 
We feel compelled, by the vastly preponderating weight of 
authority, to place the decioion upon the latter alternative ; and 
shall content ourselves with briefly alluding to a few of the 
principal adjudicated cases, without any extended discussion of 
the principles upon which they are based. 

^^An eminent jurist h^ well said that the doctrine of the civil 
law — ^ cum eo qui in sua f odiens, vicini f ontem avertit, nihil 
posse agi ; nee de dolo : Et sane actionem non debet habere ; si 
non animo vicino nocendi, sed suum agrum meliorem faciendi 
id fecit,' or, (as translated by Maule, J., in Acton v. Blundell, 
12 Mees. & W. 885) ^ if a man digs a well in his own field, 
and thereby drains his neighbor's, he may do so unless he does 
it maliciously '—contains the germ of the present English and 
American law upon the subject, so far as that may be regarded 
as settled. Such was the view of the court in Greenleaf v. 
Francis, 18 Pick. 117, as expressed by Putnam, J. : * By the 


common law, the owner of the soil may lawfully occupy the 
space above as well as below the surface, to any extent which 
he pleases, in the absence of any grant, agreement, or statute, 
or police regulation to the contrary. * * These rights should 
not be exercised from mere malice. * * He may obstruct 
the light and air above, and cut off the springs of water below 
the surface. * * The defendant dug his well in that part of 
his own ground where it would be most convenient for him. It 
was a lawful act, and although it may have been prejudicial to 
the plaintiff, it is damnum absque injuria,'^ 

*' So, in Parker v. B. & M. R. R. 3 Cush. 107, in discussing the 
relative rights of owners of lands, C. J. Shaw, on page 114, 
said : ' Each owner of land has a right to make a proper use 
of his own estate, and sinking a well upon it is such proper 
use ; and if water, by its natural current, flows from one to the 
other, and a loss ensues, it is damnum absque injuria.^ 

^^ The first leading and most frequently cited English case, 
wherein the rules regulating riparian rights were held inapplica- 
ble to percolating waters, is that of Acton v. Blundell, 12 Mees. 
& W. 335, decided in 1843, in the Exchequer Chamber. The 
plaintiff's cotton-mill was carried by water raised from a well 
in his own land. Subsequently, the defendant sunk a coal- 
pit in his own land, one-half mile from the plaintiff's well, 
whereby the latter's supply of water was destroyed. Tindal, 
C. J., after discussing the known ntate and condition of water 
in surface-channels and the well settled rules governing riparian 
rights, says : ' But in the case of a well sunk by a proprietor in 
his own land, the water which feeds it from a neighboring soil 
does not flow openly in the sight of the neighboring proprietor, 
but through the hidden veins of the earth beneath its surface ; 
no man can tell what changes these underground sources have 
undergone in the progress of time ; it may be that it is only 
yesterday's date that they first took the course and direction 
which enabled them to supply the well ; again, no proprietor 
knows what portion of water is taken from beneath his own 
soil ; how much he gives originally, or how much he transmits 
only, or how much he receives ; on the contrary, until the well 
is sunk, and the water collected by draining into it, there cannot 
properly be said, with reference to the well, to be any flow of 


water at all. * * If the man who sinks the well in his own 
land can acquire by tha>t act an absolute and indefeasible right 
to the water that collects in it, he has the power of preventing 
his neighbor from making any use of the spring in his own soil 
which shall interfere with the enjoyment of the well. He has 
the power still further of debarring the owner of the land in 
which the spring is &rst found, or through which it is transmit- 
ted, from draining his land for the proper cultivation of his 
soil. * * The advantage on one side, and the detriment to 
the other, may bear no proportion. The well may be sunk to 
supply a cottage, or a drinking-place for cattle, whilst the owner 
of the adjoining land may be prevented from mining metals and 
minerals of inestimable value. And, lastly, there is no limit of 
space within which the claim of right to an underground spring 
can be confined.' The opinion concludes as follows : '^ We think 
this case, for the reasons given, is not to be go^pmed by the 
law which applies to rivers and flowing streams, but that it 
rather falls within the principle which gives the owner of 
the soil all that lies beneath the surface; that the land im- 
mediately below is his property, whether it is solid rock, or 
porous ground, or venous earth, or piart soil, part water; that 
the person who owns the soil may dig therein, and apply all 
that is there found to his own purposes at his free will and 
pleasure ; and that if, in the exercise of such right, he intercepts 
and drains off the water collected from underground springs 
in his neighbor's well, this inconvenience to his neighbor falls 
within the description of damnum abaqtie injuria^ which cannot 
become the ground of action.' 

^*In 1852, the Court of Exchequer, in Dickinson v. Grrand 
June. Canal Co. 7 Exch. 282, held th4t, at common law, the de- 
fendants, by sinking a well upon their own premises and there- 
by preventing water from percolating in its natural course into 
the river on which the plaintiff's mill was situated, to his dam-' 
age, were liable in an action therefor. But the same court, 
four years later, in Broadbent v. Ramsbotham, 11 Exch. 602, 
held that where the plaintiff's mill had, for more than fifty 
years, been worked by the stream of a brook supplied by the 
water of a pond filled by rain, a shallow well supplied by sub- 
terranean waters, a swamp and a well formed by a stream spring- 


ing out of the side of a hill, the waters of all which occasion- 
ally overflowed and ran down the defendant's land, in no definite 
channel into the brook — the plaintiff had no right, as against 
the defendant, to the natural flow of any of the waters. Alder- 
son, B., in the opinion of the court, on page 614, says : ^ No 
doubt, all the water falling from heaven, and shed upon thesur- 
face of a hill, at the foot of which a brook runs, must, by the 
natural force of gravity, find its way to the bottom and so into 
the brook ; but this does not prevent the owner of the land on 
which this water falls from dealing with it as he may please, 
and appropriating it. He cannot, it is true, do so if the water 
has arrived at, and is^ flowing in, some natural channel already 
formed. But he has a perfect right to appropriate it before it 
arrives at such a channel.' 

^^ But the English case which received the most consideration 
is Chasemore v. Richards, Clerk to Croydon Local Board of 
Health, 2 H. & N. 168 ; S. C. 7 H. L. Cas. 849. The plain^ 
iff's mill had been propelled more than sixty years by the river 
Wandle, having its rise in Croydon, and being fed largely 
by the rainfall on a large territory, including the town. The 
rainfall percolated through the ground to the river. The de- 
fendants sunk a deep well in their land, a quarter of a mile from 
the rise of the river, and by pumping the water for supplying 
the town, thereby, abstracted and diverted so much of the under- 
ground water, which would otherwise have found its way into 
the river, as appreciably retarded the mill. In an action for the 
diversion, the Court of Exchequer, in 1856, gave judgment to 
the defendants, upon the authority of Broadbent v> Ramsbotham, 
supra. The case then went to the Exchequer Chamber, where, 
in 1857, th udgment below was aflSrmed, all the judges con- 
curring in the opinion pronounced by Creswell, J., with the 
exception of Coleridge, J., who delivered a dissenting opinion, 
basing it upon the maxim sic uter^ etc. The case then went 
to the House of Lords, where, in 1859, after solemn argument, 
the former judgment was reaflSirmed by the unanimous opinion 
of all the judges summoned, and by the House of Lords, with 
the exception of Lord Wensleydale, who hesitated to sustain, 
in its full extent, the doctrine of the judges. 

" Wightman, J., speaking for the judges in relation to the 


right contended for by the plaintiff, says : ^ It is impossible to 
reconcile such a right with the natural and ordinary rights of 
land-owners, or to fix any reasonable limits to the exercise of 
such a right. * * Such a right would interfere with, if not 
prevent, the draining of land by the owner. Suppose a man 
sunk a well upon his own land, and the amount of percolating 
water which fotbid its way into it had no sensible effect upon 
the quantity of water in the river, no action would be maintain- 
able ; but if many land-owners sank wells upon their own lands, 
and .thereby absorbed so much of the percolating water by the 
united effect of all the wells as would sensibly and injuriously 
diminish the quantity of water in the river, could an action be 
maintained against any one of them? and if any, which? for 
no action could be maintained against them jointly. * * The 
defendant's well is only a quarter of a mile from the river ; but 
the question would have been the same if the distance had been 
twenty miles, provided the effect had been the same.' The 
opinion cites approvingly Broadbent v. Ramsbotham and Acton 
V. Blundell, and overrules Dickinson v. Grand June. Can. Co. 
Lord Chelmsford held the opinion — ' the principles which apply 
to flowing water in streams or rivers are wholly inapplicable to 
water percolating through underground strata which has no 
certain course, no defined limits, but which oozes through the 
soil in every direction in which the rain penetrates. There is no 
difficulty in determining the rights of the different proprietors 
to the usufruct of the water in a running stream. Whether it 
has been increased by floods or diminished by drouth, it flows 
on in the same ascertained course. * * But the right to per- 
colating underground water is necessarily of a very uncertain 
description. When does this right commence ? Before or after 
the rain has found its way to the ground? If the owner of 
land through which the water filters cannot intercept it in its 
progress, can he prevent its descending to the earth at all, by 
catching it in tank or cistern ? And how far will the right of 
this water supply extend?' Lord Cranworth said if the doc- 
trine contended for by the plaintiff should prevail, ^it would 
always require the evidence of scientific men to state whether 
or not there had been interruption. * * It is a process of 
nature not apparent ; and therefore such percolating water has 


not received the protection which water running in a natural 
channel on the surface has always received. If the argument 
of the plaintiff was adopted, the consequence would be that 
every well that ever was sunk would have given rise or might 
give rise to an action.' 

" So, in 1860, in New River Co. v. Johnson, 2 El. & E. 484, 
(105 E. C. L.) in an action by the respondent to recover dam- 
ages (1) for preventing water from percolating underground 
into her well; and (2) for abstracting from the well, water 
which had already so percolated into or which was in it. 
Cockbum, C. J., said: ^As to the first ground of complaint, 
Chasemore v. Richards is an express authority that it would not 
constitute any cause; and as to the second ground, Acton v. 
Blundell is as plain an authority that no action would have lain 
in respect of that cause.' Wightman, J., expressed similar 
views, adding that he thought Chasemore v, Richards decisive 
of both grounds, while Crompton, J., said: * There may be 
some distinction between a case of water running in a defined 
stream, and the present case of water merely percolating, as to 
which Acton v. Blundell shows conclusively that no action will 
lie ; and that the only remedy of the owner of a well from which 
such water has been abstracted, is to sink the well deeper.' 

^^ Again, in 1868, the subject came before the Queen's Bench, 
in Regina v. Metropolitan Board of Works, 8 Best & Smith, 
708 (118 E. C. L.). A part of the prosecutor's estate was sit- 
uate upon a deep bed of gravel, imbedded in a basin of clay. 
In the gravel-bed, on the lower part of the premises, there had 
existed, from time immemorial, a pond fed by several powerful 
springs at its bottom ; the water, overflowing one edge of the 
clay-basin, formed a rivulet, which ran through the grounds and 
supplied ornamental ponds therein, and which was used for the 
cattle and for supplying the garden. The defendants, in con- 
structing a sewer along and under a highway, cut through the 
gravel-bed and basin of clay, at a distance from the prosecutor's 
premises varying from seventeen to one hundred and fifty-three 
yards, the immediate effect of which was to prevent the springs 
there from finding their way into the pond, so that it, together 
with the rivulet and other ponds, became dry. The judges 
unanimously held that the case was ^ in principle not to be distin- 


guished from that of Chasemore v, Richards,' quoting the par- 
agraph from Justice Wightman's opinion which we have tract- 
scribed above, and adding : * We entirely concur in this view of 
the law, and consider it to be strictly applicable to the circum- 
stances of the present case.' Chasemore v. Richards was also 
recognized as sound law by Cockburn, C. J., and the other 
judges of the Queen's Bench, in Hodgkinson v. Ennor, 4 Best 
& Smith, 229, (116 E. C. L.) decided in 1863. Again, in 1869, 
in Popplewell v. Hodgkinson, Cockburn, C. J., speaking for all 
the Court, said : ^ Although there is no doubt that a man has no 
right to withdraw from his neighbor the support of adjacent 
soil, there is nothing at common law to prevent his draining that 
soil, if for any reason it becomes necessary or convenient for 
him to do so.' (4 Law R. Ex. 251.) 

This subject has been thoroughly examined in several of the 
States of this Union, and the doctrine of the English Courts 
adopted. (Frasier v. Brown, 12 Ohio St. R. 294 ; Routh v. 
Driscoll, 20 Conn. 583; Brown v. Blius, 25 Conn. 598; Ellis v. 
Duncan, 21 Barb. 230; Wheatleigh v. Baugh, 25 Penn. St. 
528 ; Haldeman v. Bruckhart, 45 Penn. St. 518 ; Chatfield v. 
Wilson, 28 Vt. 49 ; Clark v. Conroe, 88 Vt. 469.) 

" We are aware that a contrary doctrine has been held by a 
few of the most learned courts in this country, and among 
them that of New Hampshire. In Bassett v. Salisbury Manf . 
Co. 48 N. H. 569, and again in Swett v. Cutts, 50 N. H. 439,^ 
the subject was most elaborately and candidly discussed, and 
the cases reviewed. But we feel better satisfied with the 
reasoning in the cases from which we have made such liberal 
extracts, and the American cases, which we have simply cited, 
than with the views expressed by the courts holding the other 
doctrine ; and we see less difficulties in applying the rule of 
CUJU8 aolunij etc., than thai of sic uteres etc., to cases of this 
character. The tendency of all the authorities is against the 
acquisition of a prescriptive right in cases of this nature, and 
the plaintiff's counsel has abandoned that point. There is no sat- 
isfactory evidence in this case that the injury to the plaintiff's 

^In a comparatively late case in England, an injanction was granted against 
the diversion of a subterraneous d^ned stream, (Orand Sec. Company v. Shu- 
gar, L. B. 6 Gh. 483. See, also, Dudden v. Guardians, 38 Eng. L. & £q. 526.) 

D. A. I.— 11. 



spring was caused otherwise than by a diversion of the under- 
^ound percolating water, caused by the digging of the defend- 
ant's well. There is no evidence of malice on the part of the de- 
fendant in the digging or otherwise constructing of his welL 
Whether or not malice on his part would make any difference 
in the decision of the case, it is unnecessary for us to consider. 

^^ Our conclusion, therefore, is that defendant having dug his 
well in good faith, for the purpose of obtaining water for do- 
mestic uses, is not liable for any damage which incidentally re- 
sulted to the plaintifE, by reason of thereby diverting the water 
which had been accustomed to percolate, or flow in an unknown 
subterranean current, into the plaintiff's spring." 

Chasemore v. Richards, 7 H. L. Cas. 349,^ is another leading 
case on the subject, and it was there held that the principles 
which regulate the rights of owners of land in respect to w^ter 
flowing in known and defined channels, whether upon or below 
the surface of the ground, do not apply to underground water 
which merely percolates through the strata in no known chan- 
nels. The case was stated by one of the justices as follows : 

^' It appears, by the facts that are found in this case, that the 
plaintiff is the occupier of an ancient mill on the river Wandle, 
and that, for more than sixty years before the present action, he, 
and all the preceding occupiers of the mill, used and enjoyed, as 
of right, the flow of the river for the purpose of working their 
mill. It also appears that the river Wandle is, and always has 
been, supplied above the plaintiff 's mill, in part, by the water 
produced by the rainfall on a district of many thousand acres 
in extent,, comprising the town of Croydon and its vicinity. 
The water of the Rainfall sinks into the ground to various 
depths, and then flows and percolates through the strata to the 
river Wandle,* part rising to the surface, and part finding its 
way underground in courses which* continually vary. The de- 
fendant represents the members of the Local Board of Health 
of Croydon, who, for the purpose of supplying the town of 
Croydon with water, and for other sanitary purposes, sank a 

1 The doctrine of Chasemore v. Bichards has been supported hy the following 
American cases besides those cited in the text : Greenleaf v, Francis, 18 Pick. 
117; Wilson v. New Bedford, 106 Mass. 261; Boath v. DriscoU, 20 Conn. 533; 
Chatfleld v. Wilson, 28 Vt. 49; Bliss v. Greely, 45 N. Y. 671; Mosier r. Caldwell, 
7 Nevada, 363; Hanson v. McCne, 42 Cal 303. 


well in their own land in the town of Croydon, and about a 
quarter of a mile from the river Wandle, and pumped up large 
quantities of water from their well for the supply of the town 
of Croydon ; and by means of the well and the pumping, the 
Local Board of Health did divert, abstract, and intercept under- 
ground water, but underground water only, that otherwise would 
have flowed and found its way into the river Wandle, and so to 
the plaintiff 's mill ; and the quantity so diverted, abstracted, 
and intercepted was sufficient to be of sensible value toward the 
working of the plaintiff's mill. The question is, whether the 
plaintiff can maintain an action against the defendant for this di- 
version, abstraction, and interception of the underground water.*' 
Wightman, J., said : " The law respecting the right to water 
flowing in definite, visible channels may be considered as pretty 
well settled by several modern decisions, and is very clearly 
enunciated in the judgment of the Court of Exchequer in the 
case of Embrey v. Owen, 6 Exch. 858. But the law, as laid 
down in those cases, is inapplicable to the case of subterranean 
water not flowing in any definite channel, nor indeed at all, in 
the ordinary sense, but percolating or oozing through the soil, 
more or less, according to the quantity of rain that may chance 
to fall. The inapplicability of the general law respecting rights 
to water to such a case has been recognized and observed upon 
by many judges whose opinions are of the greatest weight and 
authority. In the case of Rawstron v. Taylor, 11 Exch. 882, 
Baron Parke, in the course of delivering judgment, says : ^ This 
is the case of common surface water flowing in no definite chan- 
nel, though contributing to the supply of the plaintiff's mill. 
The water having no definite course, and the supply not being 
constant, the plaintiff is not entitled to it. The right to have a 
stream running in its natural direction does not depend upon a 
supposed grant, but is jure naturcB.^ 

^^ In delivering the judgment of the Court of Exchequer in 
the subsequent case of Broadbent v. Kamsbotham, 11 Exch. 602, 
615, Baron Alderson observes that *' all the water falling from 
heaven, and shed upon the surface of a hill, at the foot of which 
a brook runs, must by the natural force of gravity find its way 
to the bottom, and so into the brook ; but this does not prevent 
the owner of the land on which it falls from dealing with it as 


he may please, and appropriating it. He cannot do so if the 
water has arrived at and is flowing in some definite channel. 
There is here no water-course at all.' In the earlier case of 
Acton V. Blundell, 12 Mees. & W. 824, the Court of Exchequer 
was of opinion that the owner of the surface might apply sub- 
terranean water as he pleased, and that any inconvenience to 
his neighbor from so doing was damnum absque injuria^ and 
gave no ground of action. 

" There is no case or authority of which I am aware that can 
be cited in support of the position contended for by the plaintiff, 
or in which the right to subterranean percolating water adverse 
to that of the owner of the soil came in question, except the 
Nisi Prius case of Balston v, Bensted, 1 Camp. 463, and Dickin- 
son V. The Grand Junction Canal Company, 7 Exch. 282. 

"Iq the first of these cases. Lord EUenborough is reported 
to have expressed an opinion that twenty years' enjoyment 
of the use of water in any manner afforded an exclusive pre- 
sumption of right. This opinion amounted only to the dictum 
of an eminent judge, followed by no decision upon the point, 
for the case ended in the withdrawal of a juror, and is directly 
at variance with, the judgment of the Court of Exchequer in 
the other case, upon which the plaintiff relies, of Dickinson v. 
The Grand Junction Canal Company, in which the Court de- 
dared (7 Ex. 299) ' that the right to have a stream running 
in its natural course is not by a presumed grant from long acqui- 
escence on the part of the riparian proprietors above and below, 
but is ex jure naturae^ and an incident of property as much as 
the right to have the soil itself in its natural state, unaltered by 
the acts of a neighboring proprietor, who cannot dig so as to 
deprive it of the support of his land.' 

"In the case of Dickinson .v. The Grand Junction Canal 
Company, the very question now before your lordships' house 
arose, and that case is relied upon by the plaintiff as a decisive 
authority in his favor. The Court of Exchequer was of opin- 
ion that the company, by digging a well and pumping out the 
water, and so intercepting and diverting underground and per- 
colating water which would otherwise have gone into a stream 
which flowed to the plaintiff's mill, and was applied to the 
working of it, had become liable to an action for the infringe- 


ment of a right at common law. In the same judgment, how- 
ever, the court refers (7 Ex. 300) to the case of Acton v. Blun- 
dell, 12 Mees. & W. 824, apparently with approbation, and 
observes : ' That the existence and state of underground water 
is generally unknown before a well is made ; and after it is made 
there is a difficulty in knowing, certainly, how much, if any, of 
the water of the well, when the ground was in its natural state, 
belonged to the owner in right of his property in the soil, and 
how much belonged to his neighbor. These practical uncer- 
tainties make it very reasonable not to apply the rules which 
regulate the enjoyment of streams and waters above ground to 
subterranean waters.' But the Court, without at .all adverting 
to this distinction which it had adopted, treated the case of un- 
derground percolating water as governed by the same rules as 
would obtain in the case of visible streams and water-courses 
above ground ; and no remark or comment was made or reason 
assigned by the Court for arriving at a conclusion which not 
only does not seem warranted by the premises previously 
adopted, but is in effect hardly consistent with them. The 
plaintiff in that case was held to have a cause of action, inde- 
pendently of any infringement of a right at common law, by 
reason of the breach of an agreement between the parties and 
of an act of Parliament ; and a decision upon the right at com- - 
mon law seems not to have been necessary for determining the 
suit between the parties. These considerations greatly weaken 
the effect of the case of Dickinson v. The Grand Junction Canal 
Company as an authority against the defendant upon the point 
now in question, but it is an authority in his favor to show that 
a right to water is not by a presumed grant from long acquies- 
cence, but if it exists at all, iajure naturce, and that the rules of 
law that regulate the rights of parties to the use of water are 
hardly, or rather not at all, applicable to the case of waters per- 
colating underground. 

^^ In such a case as the present, is any right derived from the 
use of the water of the River Wandle for upward of twenty 
years for working the plaintiff's mill ? Any such right against 
another, founded upon length of enjoyment, is supposed to have 
originated in some grant which is presumed from the owner of 
what is sometimes called the servient tenement. But what 


grant can be presumed in the case of percolating waters, de- 
pending upon the quantity of rain falling or the natural mois- 
ture of the soil, and in the absence of any visible means of 
knowing to what extent, if at all, the enjoyment of the plaint- 
iff's mill would be affected by any water percolating in and out 
of the defendant's or any other land ? The presumption of a 
grant only arises where the person against whom it is to be 
raised might have prevented the exercise of the subject of the 
presumed grant ; but how could he prevent or stop the perco- 
lation of water ? The Court of Exchequer, indeed, in the case 
of Dickinson v. The (xrand Junction Canal Company, expressly 
repudiates the notion that such a right as that in question can 
be founded on a presumed grant, but declares that with respect 
to running water it is jure naturcB. If so a fortiori^ the right, 
if it exists at all, in the case of subterranean percolating water, 
is jure naturce^ and not by presumed grant, and the circum- 
stance of the mill being ancient would in that case make no 

*'*' The question then is, whether the plaintiff has such a 
right as he claims jure naturce to prevent the defendant sinking 
a well in his own ground at a distance from the mill, and so 
absorbing the water percolating in and into his own ground be- 
neath the surface, if such absorption has the effect of diminish- 
ing the quantity of water which would otherwise find its way 
into the river Wandle, and by such diminution affects the work- 
ing of plaintiff's mill. It is impossible to reconcile such a right 
with the natural and ordinary rights of land-owners, or to fix 
any reasonable limits to the exercise of such a right. Such a 
right as that contended for by the plaintiff would interfere with, 
if not prevent, the draining of land by the owner. Suppose, as 
it was put at the bar in argument, a man sank a well upon his 
own land, and the amount of percolating water which found a 
way into it had no sensible effect upon the quantity of water in 
the river which ran to the plaintiff's mill, no action would be main- 
tainable ; but if many land-owners sank wells upon their own 
lands, and thereby absorbed so much of the percolating water, 
by the united effect of all the wells, as would sensibly and in- 
juriously diminish the quantity of water in the river, though no 
one well alone would have that effect, could an action be main- 


tained figainst any one of them? and if any, which? for it is 
clear that no action could be maintained against them jointly. 

^^ In the course of the argument, one of your lordships [Lord 
Brougham] adverted to the French artesian well at the Abat- 
toir de Ghrenelle, which was said to draw part of its supplies 
from a distance of forty miles, but underground, and, as far as 
is known, from percolating water. In the present case, the 
water which finds its way into the defendant's well is drained 
from and percolates through an extensive district, but it is im- 
possible to say how much from any part. If the rain which has 
fallen may not be intercepted whilst it is merely percolating 
through the soil, no man could safely collect the rain-water as 
it fell into a pond ; nor would he have a right to intercept its 
fall, before it reached the ground, by extensive roofing, from 
which it might be conveyed to tanks, to the sensible diminution 
of water which had, before the erection of such Impediments, 
reached the ground, and flowed to the plaintiff's mill. In the 
present case, the defendant's well is only a quarter of a mile 
from the river Wandle ; but the question would have been the 
same if the distance had been ten or twenty or more miles dis- 
tant, provided the effect had been to prevent underground perco- 
lating water from finding its way into the river, and increasing 
its quantity, to the detriment of the plaintiff's mill. Such a 
right as that claimed by the plaintiff is so indefinite and unlim- 
ited that, unsupported as it is by any weight of authority, we 
do not think that it can be well founded, or that the present 
action is maintainable ; and we therefore answer your lordships' 
question in the negative." 

Lord Chelmsford also agreed with this view, and said: "The 
question in this case is, whether the plaintiff in error is entitled 
to claim against the defendant the right to have the benefit of 
the rain-water which falls upon a district of many thousand 
acres in extent, and percolates through the strata to the river 
Wandle, increasing the supply of water in the river, and being 
of sensible value in and toward the working of an ancient mill 
belonging to the plaintiff. The acts of the defendant by which 
this underground water was interrupted and prevented from 
finding its way into the river, were done upon his own land. 

" It was conceded by the plaintiff, in argument, that a land- 


owner had a limited and qualified right to appropriate water, 
the course of which is invisible and undefined, exactly to the 
same extent and for the same purposes as he would be entitled 
to use water flowing in a defined and visible channel. This, 
it was contended, must be confined to a reasonable use of the 
water for domestic and agricultural purposes, and perhaps, (it 
was said) according to the opinion of Chancellor Kent, for the 
purposes of manufacture also. It must further be admitted 
(and it appeared to be so in argument) that in addition to these 
direct uses to which the water may be diverted, if, in the regu- 
lar course of mining operations, the percolation of underground 
water is arrested in its progress, and prevented reaching a point 
where it would have increased a supply which had previously 
been usefully employed by an adjoining land -owner, he can 
maintain no action for the loss of the water thus cut off from 
him. A distinction was suggested between such a use as the 
one last mentioned, where the interception of the water was 
merely the consequence of operations upon a party's own land, 
and the present, where the very end and object of the acf done 
was to collect and appropriate the water. And upon the state 
of things existing in this case, a further distinction was insisted 
upon between a party sinking a well in his own land for domestic 
or agricultural or manufacturing purposes, and a public board 
or a water company doing the same thing for sanitary purposes, 
or for supplying the inhabitants of the neighborhood with water. 
Before, however, the plaintiff can question the act of the de- 
fendant, or discuss with him the reasonableness of the claim to 
appropriate this underground water for these purposes, (what- 
ever they may be) he must first establish his own right to have 
it pass freely to his mill, subject only to the qualified and re- 
stricted use of it to which each owner may be entitled through 
whose land it may make its way. It seems to me that both prin- 
ciple and authority are opposed to such a right. 

" The law as to water flowing in a certain and definite channel 
has been conclusively settled by a series of decisions, in which 
the whole subject has been very fully and satisfactorily con- 
sidered, and the relative rights and duties of riparian proprie- 
tors have been carefully adjusted and established. The princi- 
ple of these decisions seems to me to be applicable to all water 


flowing in a certain and defined course, whether in an open vis- 
ible stream or in a known subterranean channel ; and I agree 
with the observation of Lord Chief Baron Pollock, in Dickin- 
son V. The Grand Junction Canal Company, 7 Ex. 300, 301, 
* that if the course of a subterranean stream were well known, 
as is the case with many which sink underground, pursue for 
a short space a subterraneous course, and then emerge again, it 
never could be contended that the owner of the soil under which 
the stream flowed could not maintain an action for the diversion 
of it, if it took place under such circumstances as would have 
enabled him to recover had the stream been wholly above 
ground.' But it appears to me that the principles which apply 
to flowing water in streams or rivers, the right to the flow of 
which in its natural state is incident to the property through 
which it passes, are wholly inapplicable to water percolating 
through underground strata, which has no certain course, no de- 
fined limits,' but which oozes through the soil in every direction 
in which the rain penetrates. There is no difficulty in determin- 
ing the rights of the different proprietors to the usufruct of the 
water in a running stream. Whether it has been increased by 
floods or diminished by drouth, it flows on in the same ascer- 
tained course, and the use which every owner may claim is only 
of the water which has entered into and become a part of the 
stream. But the right to percolating underground water is 
necessarily of a very uncertain description. When does this 
right commence ? Before or after the rain has found its way to 
the ground ? If the owner of land through which the water 
filters cannot intercept it in its progress, can he prevent its de- 
scending to the earth at all, by catching it in tanks or cisterns ? 
And how far will the right to this water supply extend ? 

" In this case, the water which ultimately finds its way to the 
river Wandle is strained through the soil of several thousand 
acres. Are the most distant land-owners, as well as the adjacent 
ones, to be bound, at their peril, to take care to use their lands 
so as not to interrupt the oozing of the water through the soil to 
a greater extent than shall be necessary for their own actual 
wants ? For, with Mr. Justice Coleridge, I do not see here ' how 
the ignorance ' which the land-owner has of the course of the 
springs below the surface, of the changes they undergo, and 


of the date of their commencement, * is material in respect of 
a right which does not grow out of the assent or acquiescence 
of the land-holder, as in the case of a servitude, but out of the 
nature of the thing itself.' (2 Hurl. <fe N. 191.) 

^^ This distinction between water flowing in a definite channel, 
and water, whether above or under ground, not flowing in a 
stream at all, but either draining off the surface of the laud, or 
oozing through the underground soil in varying quantities and 
in uncertain directions, depending upon the variations of the 
atmosphere, appears to be well settled by the cases cited in 
argument. In Rawstron v, Taylor, 11 Ex. 369, 382, it was 
held that, in the case of common surface water rising out of 
springy or boggy ground, and flowing in no definite channel, 
the land-owner was entitled to get rid of it in any way he pleased, 
although it contributed to the supply of the plaintiff's mill. 
And in Broadbent v. Ramsbotham, 11 Exch. 602, it was decided 
that a land-owner has a right to appropriate surface water which 
flows over his land in no definite channel, although the water is 
thereby prevented from reaching a brook, the stream of which 
had for more than fifty years worked the plaintiff's mill. Baron 
Alderson, in delivering the judgment of the court in that case, 
says (11 Exch. 615) : ' No doubt, all the water falling from 
heaven, and shed upon the surface of a hill, at the foot of which 
a brook runs, must, by the natural force of gravity, find its way 
to the bottom, and so into the brook ; but this does not prevent 
the owner of the land on which this water falls from dealing 
with it as he may please, and appropriating it. He cannot, it 
is true, do so if the water has arrived at and is flowing in some 
natural channel already formed. But he has a perfect right to 
appropriate it before it arrives at such channel.' 

" These cases apply to the right to surface water not flowing 
in any defined natural water-course. But, of course, the princi- 
ples they establish are equally, if not more strongly, applicable 
to subterranean water of the same casual, undefined^ and vary- 
ing description. This appears clearly to have been the opinion 
of Lord Chief Justice Tindal and the Court of Exchequer 
Chamber, in the case of Acton v. Blundell, 12 Mees. & W. 324, 
848 ; for, although the court abstained from intimating any 
opinion as to what might have been the rule of law if there 


had been an uninterrupted user for twenty years of the well of 
the pliuntifi, which had been laid dry by the mining operations 
of the defendant, yet the chief justice haying prefaced his judg- 
ment by stating that *the question argued had been in sub- 
stance this : whether the right to the enjoyment of an under- 
ground spring, or of a well supplied by such underground 
spring, is govemed by the same rule of law as that which 
applies to and regulates a water -course flowing on the surface,' 
he concludes with these words (12 Mees. & W. 868) : * We 
think that the present case is not to be governed by the law 
which applies to rivers and flowing streams, but that it rather 
falls within that principle which gives to the owner of the soil 
all that lies beneath his surface ; that the land immediately be- 
low is his property, whether it is solid rock, or porous ground, 
or venous ewrth, or part soil, part water ; that the person who 
owns the surface may dig therein, and apply all that is there 
found to his own purposes, at his free will and pleasure ; and 
that if in the exercise of such right he intercepts or drains off 
the water collected from underground springs in his neighbor's 
well, this inconvenience to his neighbor falls within the descrip- 
tion of damnuvn absque injuria^ which cannot become the ground 
of an action.' 

"The Court of Exchequer, in the present case, gave judg- 
ment for the defendants without argument, on the authority of 
the decision in Broadbent v. Ramsbotham. The Court of Ex- 
chequer Chamber affirmed that judgment, there having been 
only one dissentient opinion, which, however, pronounced, as it 
was, by a most learned and able judge, [Mr. Justice Coleridge] 
is certainly entitled to the highest respect. The judges, of whose 
assistance your lordships have had the advantage, have been 
unanimous in their agreement with the judgment of the Court 
of Exchequer Chamber. 

" Against this concurrence of authority, what is there to be 
opposed in favor of the plaintiff but the Nisi Prius case of 
Balston v. Bensted, (1 Camp. 463) and the case of Dickinson t^. 
The Grand Junction Canal Company (7 Exch. 282) ? With 
respect to Balston v. Bensted, it does not appear that the ques- 
tion of the right to water percolating through the strata, as 
contradistinguished from water flowing in a visible stream, was 


ever presented to Lord EUenborough's mind, as it is stated that 
the defense was intended to be set up, but that he observed, early 
in the trial, that there could be no doubt but that twenty years' 
exclusive enjoyment of water in any particular manner affords 
a conclusive presumption of right in the party so enjoying it. 
Whether, by the words, *in any particular manner,' his lord- 
ship meant to point to the right claimed in that case, or intended 
to state a proposition applicable to all water of which there had 
been a twenty years' enjoyment, from whatever source it might 
be derived, it is impossible to gather from the report; but the 
question was never argued, and as, upon proof that the decrease 
of the water in the plaintiff 's bath had been occasioned by the 
operations in the defendant's quarry, the case was at once re- 
ferred, it can hardly be urged as any authority at all upon a 
point of such importance, and which requires so much consider- 
ation as that which it is supposed to have decided. 

" With respect to the case of Dickinson v. The Grand Junction 
Canal Company, upon which the plaintiff also relied, after the 
observations made upon it by Mr. Justice Cresswell in the Ex- 
chequer Chamber, and by Mr. Justice Wightman in delivering 
the opinion of the judges to this house, it is unnecessary for me to 
say more than that I entirely agree with them, and think that it 
can hardly be regarded as a satisfactory decision upon the point 
now under consideration. It appears to me that reason and 
principle, as well as authority, are opposed to the claim of the 
plaintiff to maintain an action for the interception of the under- 
ground water which would otherwise have ultimately found its 
way to the river Wandle, and that, therefore, the judgment of 
the Court of Exchequer Chamber ought to be aflSrmed." 

Lord Cran worth, concurring, discussed the matter as follows : 
" The right to running water has always been properly described 
as a natural right, just like the right to the air we breathe ; 
they are the gifts of nature, and no one has a right to appro- 
priate them. There is no difficulty in enforcing that right, 
because running water is something visible, and no one can in- 
terrupt it without knowing whether he does or does not do injury 
to those who are above or below him. But if the doctrine could 
be applied to water merely percolating, as it is said, through the 
soil, and eventually reaching some stream, it would be always a 


matter that would require the evidence of scientific men, to state 
whether or not there had been interruption, and whether or not 
there had been injury. It is a process of nature not apparent, 
and therefore such percolating water has not received the pro- 
tection which water running in a natural channel on the surface 
has always received. If the argument of the plaintifP were 
adopted, the consequence would be that every well that ever 
was sunk would have given rise or might give rise to an action. 
^^ It is said that, in this case, this is not a well sunk by a par- 
ticular individual for his own purposes, but a great well, which 
has been sunk, and by which water is raised to a very enormous 
extent, for supplying the whole town of Croydon. That argu- 
ment does not affect my mind at all, because if it be conceded, 
as I think it must be conceded, that each and every one of the 
individuals residing upon this area might have sunk a well of 
his own to supply himself, it seems to me to be exactly the same 
thing whether the water is abstracted by one large well, which 
supplies the whole community, or by a thousand small wells, by 
which each individual of the community supplies himself. In 
truth, I should think that, in all probability, the loss of water 
would be much greater by each individual sinking a well than 
by one great well being sunk for the supply of the whole com- 
munity." ^ 

1 Lord Wensleydale concurred, but with some doubts, and remarked : ** Your 
lordships have, for the first time, to decide the question as to the rights to un- 
der^pround water. There are two conflicting authorities : the case under appeal, 
and that of Dickinson vf The Grand Junction Canal Company, 7 Ex. 282, and 
your lordships have to decide between them. It is supposed, in the judgment 
in this case, delivered in the Exchequer Chamber by Mr. Justice Cresswell, that 
the Court of Exchequer had, in two subsequent cases, (Rawstron v. Taylor, 11 
Ex. 969, and Broadbent v. Ramsbotham, 11 Ex. 602; 25 Law J. K. 8. Ex. 115) 
decided differently. Those cases are said to be inconsistent with the decision 
in Dickinson v. The Grand Junction Canal Company, and virtually to overrule 
it. This is certainly a mistake; for, having been a party to the judgments in 
each of those cases, I am sure I, at least, had no notion of impugning the 
doctrine which I had joined in laying down before, in the case of Dickinson v. The 
Grand Junction Canal Company, which was not decided without great consid- 
eration. In Broadbent v. Ramsbotham, it did not appear that any water which 
percolated the strata would have reached the brook; and I well recollect that, 
on the argument, I so considered, and therefore that the plaintiff could not re- 
cover on the ground on which the case of Dickinson v. The Grand Junction 
Canal Company was decided. The argument of Mr. Cowling, as reported in 
the 25 Law Journal, 122 Exchequer, which is fuller than that in the 11 Exchequer, 
was directed to this point. I may add, that the report is more correct than that 


§ 102. Injarias to wells, springs, etc., by minixig operft- 
tions In adjacent lands. — ^Acton v. Blundell, 12 Mees. 824, 
was one of the first of the series of leading cases, in which it has 

in the 11 Exchequer, which attrihates to me too limited a view of the decision 
in Dickinson v. The Grand Junction Canal Company. 

** The subject of right to streams of water flowing on the surface has been of 
late years fully discussed, and, by a series of carefully considered judgments, 
placed upon a clear and satisfactory footing. It has been now settled that the 
right to the enjoyment of a natural stream of water on the surface ex jure natura, 
belongs to the proprietor of the adjoining lands, as a natural incident to the right 
to the soil itself, and that he is entitled to the benefit of it, as he is to all the 
other natural advantages belonging to the land of which he is the owner. He 
has the right to have it come to him in its natural state, in flow, quantity, and 
quality, and to go from him without obstruction; upon the same principle that 
he is etititled to the support of his neighbor's soil for bis own in its natural state. 
His right in no way depends upon prescription, or the presumed grant of his 
neighbor. The elaborate judgment of Lord Denman, in the case of Mason 9. 
Hill, Bam. & Adol. 1, in 1833, reviewed most prior judgments and authorities 
of importance up to that date, and fully established that proposition. But 
former authorities, and of a very early date, when carefully considered, really 
left no room for doubt on this subject. In the case of Shury v. Pigott, 3 Bulst. 
339; Poph. 166; Palmer, 444, decided in 1625, Whitlock, justice, laid it down that 
* a water-course differs from a way or common; that it doth not begin by pre- 
scription, nor yet by assent, but the same doth begin ex Jure natura^ having 
taken this course naturally, and cannot be averted ' ; and he observed that the 
course of a spring is a natural course and current, and to stop this may be a 
nuisance to the commonwealth, and a private wrong. And in Brown v. Best, 1 
Wils. 174, Lord Chief Justice Lee is reported to have said that a water-course 
is jure naturcB, and therefore a declaration stating merely the possession of the 
place through which the water used to run is good. And Denison, justice, said 
that in natural water-courses that was the most proper mode of declaring. This 
decision in the case of Mason v. Hill has been followed by many others laying 
down the same proposition, of which Wood v. Waud, 3 Ex. 748, was one. Ma- 
son V. Hill had been preceded by the case of Wright v, Howard, 1 Sim. & St. 190, 
before Vice-Chancellor Sir John Leach. And it wa# followed by Embrey v. 
Owen, 6 Ex. 353, and by Dickinson v. The Grand Junction Canal Company, 7 

"This position is also established in the American Courts, (Tyler v. Wilkinson, 4 
Mason, 400) and sanctioned by the best writers of the highest authority (3 Kent 
Com. 439-455) . And it is laid down as the first proposition in the very able treatise 
on water-courses by Mr. Angell, an American authority (pp. 1, 21, 22). And It 
has been held in America that the law implied damage from the violation of the 
right— -tide Angell on Water-courses, p. 98; Pastorius v. Fisher, 1 Rawle, 27— a 
matter which has been sometimes doubted, though probably without sufficient 
reason. We may consider, therefore, that this proposition is indisputable: that 
the right of a proprietor to the enjoyment of a water-course on the surface is a 
natural right, and not acquired by occupation of the stream itself, or presumed 
grant. And the expressions used by Mr. Justice Bayley in Williams v. Mor- 
land, 2 Bam. & C. 910, and by Lord Chief Justice Tindal in Uggins v, Inge, 7 
Bing. 682, that water flowing in a stream is puhli^ juris, and the property of 
the first occupier, are founded on a mistake between the property in the water 
itself and the right to have its continual flow. The observations, also, of Lord 


been held that one owner of land has no right or interest in it 
which will enable him to maintain an action against a land- 

Chief JuAtice Tindal, in the case of Acton i;. Blundell, 12 Mees. & W. 324, an4 
of Mr. Justice Maule, in Smith v. Kenrick, 7 G. B. 510, as to the origin of the 
right to the continual flow of a superficial stream, being the presumed acquies- 
cence of the proprietors above and below, and which is the foundation of the 
distinction made by the Lord Chief Justice between those streams and subter- 
ranean water-courses, cannot be supported. Now, the right to a natural stream 
flowing in a definite channel is not confined to streams on the surface, but the 
right to an underground stream flowing in a known and definite channel is 
equally a right ex naturuy and an incident to the land itself, as a beneficial ad- 
junct to it, as was determined in the case of Wood v. Waud, 3 Exch. 748. If 
the river Wandle in this case had been supplied by natural streams flowing into 
the river above ground, or in known definite channels below ground, the cut- 
ting off those streams to which the person entitled to the use of the river was 
entitled ex natura as feeders of the river, would be an injury to him, and give 
a right of action. And if this be true with regard to underground streams find- 
ing their way into the river, then comes the difficulty how to distinguish the 
smaller rivulets, and the drops of water which flow and percolate into and sup- 
ply the river. They are all equally the gifts of nature for the benefit of the 
proprietors of the soil through and into which they flow. They are all flow- 
ing water, the property in which is not vested in the owner of the soil, any 
more than the property in the water of a river which flows through it on the 
surface. In Acton v. Blundell, it is said by Lord Chief Justice Tindal that the 
case ' rather falls within that principle which gives to the owner of the soil all 
that lies beneath his surface; that the land immediately below is his property, 
whether it be solid rock, or porous ground, or venous earth, or part soil, part 
water; that the person who owns the surface may dig therein, and apply all 
that he finds to his own purposes, at his free will and pleasure.' If this 
applies to water underground in a natural course of transit, (and it must do so 
to be applicable at all) and not to mere stagnant water, I agree with Mr. Justice 
Coleridge in his remark, that the reason why it is, as such, more the subject of 
property than the water flowing above ground, is not explained. (2 Hurl. & N. 
192.) Surely the use of the flowing water in each case, and not the property in 
it, belongs to the propaetor of the surface. As to that part of Mr. Justice 
Coleridge's opinion in which he relies on the possession of the mill for thirty 
or sixty years, (2 Hurl. & N. 191, 193) I think he is wrong. I do not think that 
the principle ui>on which prescription rests can be applied; it has not been with 
the permission of the proprietor of the land that the streams have flowed into 
the river for twenty years or upwards: * Qui non prohibit quod prohibere potestf 
a»9entire videtur," But how here could he prevent it ? He could not bring 
an action against the adjoining proprietor ; he could not be bound to dig 
a deep trench in his own land to cut ofif the supplies of water, in order 
to indicate his dissent. It is going very far to say that a man must be 
at the expense of putting up a screen to window-lights to prevent a title 
being gained by twenty years' enjoyment of light passing through a window. 
But this case would go very far beyond that. I think that the enjoyment 
of the right to these natural streams cannot be supported by any length of 
user if it does not belong of natural right to the plaintiff. For the same reason 
I dispute the correctness, of Lord EUenborough's opinion in the case of the 
spring in Balston v, Benstead, 1 Camp. 463, where there had been twenty yetfrs' 
enjoyment of it in a particular mode. The true foundation of the right is, that 


owner, who, in carrying on mining operations in his own adja- 
cent land in the usual manner, drains away the water from the 
land of the first-mentioned owner and lays his well dry. 

it is incident to the land ex jure naturce. What, then, is the distinction between 
snperficial streams and sabterranean water ? With respect to underground waters 
percolating the strata, two considerations arise which make a material difference 
between them and the right to superficial streams. In the first place, these sub- 
terraneous waters cannot be actually enjoyed, (and all things are given to be en- 
joyed) without artificial means. The water must be reduced into possession be- 
fore it can be used, and some mode of reducing into possession must be permit- 
ted by law. If there be no such right, underground water is comparatively use- 
less. A man may therefore dig for his own supply, or make a well for his own 
use an^ that of his family, and in so doing he may depriv.e his neighbor's land 
of moisture, and even tap a copious spring, and prevent it from flowing to his 
neighbor's close. It can rarely happen that in excavating, in order to obtain 
the use of the water, some injury will not be caused to the subterraneous sup- 
plies of a neighbor, especially as the precise course and direction of such water 
can seldom be known accurately beforehand. In the second place, as the great 
interests of society require that the cultivation of every man's land should be 
encouraged, and its natural advantages made fully available, the owner must 
be permitted to dig in his own soil, and in so doing he can very rarely avoid in- 
terfering with the subterraneous waters flowing or percolating in his neighbor's 
land. In the civil law are to be found many instances in which it is allowed to 
cut oft subterraneous supplies, if it is done in the cultivation of the soil. In the 
Digest (Dig. 39, 3, 1, sec. 12, Pothier's ed. 1782, vol. 3, p. 20) it is said: 'Denique 
Marcellus scribit: Cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse 
agi: nee de dolo. Et sane actionem non debet habere; si non animo vicino no- 
cendi, sed suum agrum meliorem faciendi id fecit.' And a very extensive sense 
is given to these words, authorizing the improvement of the proprietor's own 
land, in the civil law. In the same book of the Digest, ' De aqua et aquse plu- 
visB arcendae,' (Dig. 39, 3, 1, sec. 9, Pothier's ed. 1782, vol. 3, p. 21) it is said that 
the making a work ' agri colendi causa et frugum querendarum causa,' and 
thereby altering the course of the aqiuB pluviGe^ is not actionable. The term 
*frages ' is said to be the same as rent : ' Frugem pro reditu appellari, non solam 
quod frumentis aut leguminibus; verum et quod ex vino, sylvis cseduis, creti- 
fodinis, lapidicinis, capitur.' It would seem, therefore, that if the sources of 
a fountain or spring in an adjoining piece of land were cut off by excavating, 
in order to get the minerals in any place, it would be deemed by the Roman law 
to fall within the principle of the improvement of the land, and not be action- 
able. The case of Acton v, Blundell would be rightly decided upon this ground, 
because the injury to the plaintiff's well was caused by the lawful exercise of 
the defendant's right to get the minerals in his land; and unless he had that 
right, the public would have lost the benefit of a valuable gift of Providence. 
We come, then, to the conclusion that every man has the right to the natural 
advantages of his soil— the plaintiff to the beneflt of the flow of water in the 
river and its natural supplies, the defendant to the enjoyment of his land and 
to the underground waters on it, and he may, in order to obtain that water, sink 
a well. But according to the rule of reason and law, ' sic utere tuo ut cUienum 
non Icedas,* it seems right to hold that he ought to exercise his right in a reason- 
able manner, with as little injury to his neighbor's rights as may be. The civil 
law deems an act, otherwise lawful in itself, illegal if done with a malicious in- 
tent of injuring a neighbor, animo vicino nocendi. The same principle is adopted 


In Acton v. Blundell, the plaintiff below, who was also 
the plaintiff in error, in his action on the case, declared in the 
first count for the disturbance of his right to the water of 
certain \indei*ground springs^ streams^ and water-courses^ which, 
as he alleged, ought of right to run, flow, and percolate into the 
closes of the plaintiff, for supplying certain mills with water; 
and in" the second count for the draining off the water of a cer- 
tain spring or well of water in a certain close of the plaintiff, by 
reason of the possession of which close, as he alleged, he ought 
of right to have the use, benefit, and enjoyment of the water of 
the said spring or well for the convenient use of his close. The 
defendants by their pleas traversed the rights in the manner 
alleged in those counts respectively. At the trial the plaintiff 


in tfae laws of Scotland, where an otherwise lawful act is forbidden * if done in 
cemulationemvicini* (Bell's Principles, sec. 966); but this principle has not found 
a place in our law. The question in this case, therefore, as it seems to me, re- 
solves itself into an inquiry whether the defendant exercised his right of enjoy- 
ing the subterraneous waters in a reasonable manner. Had he made the well 
and used the steam-engines for the supply of water for the use of his own prop- 
erty, and those living on it, there could have been no question. If the number 
of houses upon it had increased to any extent, and the quantity of water for 
the families dwelling on the property had been proportionately augmented, 
there could have been no just grounds of complaint. But I doubt very greatly 
the legality of the defendant's acts in abstracting water for the use of a large 
district in' the neighborhood, unconnected with his own estate, for the use of 
those who would have no right to take it directly themselves, and to the injury 
of those neighboring proprietors who have an equal right with themselves. It 
does not follow that each person who was supplied with water by the defendant 
could have dug a well himself on his own land, and taken the like quantity of 
water, so that the defendant may have taken much more than would have been 
abstracted if each had exercised his own right. 

"The same objection would not apply to the abstraction of water for the use 
of the dwellers on the defendant's land, even though they carried on trades re- 
quiring more water (breweries for example) than would be used for mere do- 
mestic pui-poses; it would still be for their purposes only. But in this case 
there has been an abstraction of water for purposes wholly unconnected with 
the enjoyment of the defendant's land. On the whole, I should certainly have 
wished to give this important case further consideration; but, as my noble and 
learned friends have formed their opinions upon it, I acquiesce, and do not give 
my advice to your lordships to reverse the judgment." 

Lords Brougham and Kingsdown concurred with Lord Chelmsford, an4 did 
not share in the doubts of Lord Wensleydale. (See, also, Wilson v. New Bed- 
ford, 106 Mass. 261; Frazier v. Brown, 12 Ohio St. 294; Hanson v. McCue, 42 Cal. 
303; Cole Silver M. Co. v. Virginia Water Co. 1 Sawy. 470; Smith v. Adams, 6 
Paige, 43B; Waffle v. Porter, 61 Barb. 130 ; Ellis v, Duncan, 21 Barb. 230. But 
see Bassett v. Salisbury Man'g Co. 43 K. H. 669; Swett v, Cutts, 50 N. H. 439; 
Grand Junction Canal Co. v. Shrigar, L. B. 6 Ch. 483.) As to underground 
ditchen, see Livingston v. McDonald, 21 Iowa, 160. 

D. A. I.— 12. 


proved that, within twenty jears before the commencement of 
the suit, viz., in the latter end of 1821, a former owner and 
occupier of certain land and a cotton-mill, now belonging to the 
plaintiff, had sunk and made in such land a well for raising 
water for the working of the mill ; and that the defendants, in 
the year 1837, had sunk a coal-pit in the land of one of the de- 
fendants, at about three-quarters of a mile from the plaintiff's 
well, and about three years after sunk a second, at a somewhat 
less distance ; the consequence of which sinking was, that by 
the first the supply of water was considerably diminished, and 
by the second was rendered altogether insufficient for the pur- 
poses of the mill. The judge before whom the cause was tried 
directed the jury that if the defendants had proceeded and 
acted in the usual and proper manner on the land, for the pur- 
pose of working and winning a coal-mine therein, they might 
lawfully do so. Tindal, C. J., in deciding the case, said : 
^The question argued before us has been in substance this: 
whether the right to the enjoyment of an underground spring, 
or of a well supplied by such underground spring, is governed 
by the same rule of law as that which applies to and regulates 
a water-course flowing on the surface. The rule of law which 
governs the enjoyment of a stream flowing in its natural course 
over the surface of land belonging to different proprietors is 
well established : each proprietor of the land has a right to the 
advantage of the stream flowing in its natural course over his 
land, to use the same as he pleases, for any purposes of his own, 
not inconsistent with a similar right in the proprietors of the 
land above or below ; so that neither can any proprietor above 
diminish the quantity or injure the quality of the water which 
would otherwise naturally descend, nor can any proprietor be- 
low throw back the water without the license or the grant of 
the proprietor above. The law is laid down in those precise 
terms by the Court of King's Bench in the case of Mason v. Hill, 
6 Barn. & Adol. 1 ; 2 Nev. & M. 747, and substantially is de- 
clared by the vice-chancellor in the case of Wright v. Howard, 
1 Sim. & St. 190, and such we consider a correct exposition of 
the law. And if the right to the enjoyment of underground 
springs, or to a well supplied thereby, is to be governed by the 
same law, then undoubtedly the defendants could not justify 


the sinking of the coal-pits, and the direction given bj the 
learned judge would be wrong. 

^^ But we think, on considering the grounds and origin of the 
law which is held to govern running streams, the consequences 
which would result if the same law is made applicable to springs 
beneath the surface, and, lastly, the authorities to be found in 
the books, so far as any inference can be drawn from them bear- 
ing on the point now under discussion, that there is a marked 
and substantial difference between the two cases, and that they 
are not to be governed by the same rule of law. 

" The ground and origin of the law which governs streams 
running in their natural course would seem to be this : that the 
right enjoyed by the several proprietors of the lands over which 
they flow is, and always has been, public and notorious ; that 
the enjoyment has been long continued — in ordinary cases, in- 
deed, time out of mind — and uninterrupted ; each man know- 
ing what he receives and what has always been received from 
the higher lands, and what he transmits and what has always 
been transmitted to the lower. The rule, therefore, either 
assumes for its foundation the implied assent and agreement of 
the proprietors of the different lands from all ages, or perhaps 
it may be considered as a rule of positive law, (which would 
seem to be the opinion of Fleta and of Blackstone) the origin 
of which ia lost by the progress of time ; or it may not be un- 
fitly treated, as laid down by Mr. Justice Story, in his judg- 
ment in the case of Tyler v. Wilkinson,^ in the courts of the 
United States, (4 Mason's Am. Rep. 401) as " an incident to 
the land; and that whoever seeks to found an exclusive use 
must establish a rightful appropriation in some manner known 
and admitted by the law." But in the case of a well sunk by 
a proprietor in his own land, the water which feeds it from a 
neighboring soil does not flow openly in the sight of the neigh- 
boring proprietor, but through the hidden veins of the earth 
beneath its surface ; no man can tell what changes these under- 
ground sources have undergone in the progress of time ; it may 
well be that it is only yesterday's date that they first took the 
course and direction which enabled them to supply the well. 
Again, no' proprietor knows what portion of water is taken from 

^ 4 Mason, 997. 


beneath his own soil ; how much he gives originally, or how 
much he transmits only, or how much he receives ; on the con- 
trary, until the well is sunk, and the water collected by drain- 
ing into it, there cannot properly be said, with reference to the 
well, to be any flow of water at all. In the case, therefore, of 
the well, there can be no ground for implying any mutual con- 
sent or agreement, for ages past, between the owners of the sev- 
eral lands beneath which the underground springs may exist, 
which is one of the foundations on which the law as to running: 
streams is supposed to be built ; nor, for the same reason, can 
any trace of a positive law be inferred from long-continued 
acquiescence and submission, whilst the very existence of the 
underground springs or of the well may be unknown to the pro- 
prietors of the soil. 

" But the difference between the two cases with respect to the 
consequences, if the. same law is to be applied to both, is still 
more apparent. In the case of the running stream, the owner 
of the soil merely transmits the water over its surface ; he re- 
ceives as much from his higher neighbor as he sends down to 
his neighbor below ; he is neither better nor worse ; the level of 
the water remains the same. But if the man who sinks the well 
in his own land can acquire by that act an absolute and inde- 
feasible right to the water that collects in it, he has the power 
of preventing his neighbor from making any use of ^the spring 
in his own soil which shall interfere with the enjoyment of the 
well. He has the power, still further, of debarring the owner 
of the land in which the spring is first found, or through which 
it is transmitted, from draining his land for the proper cultiva- 
tion of the soil ; and thus, by an act which is voluntary on his 
part, and which may be entirely unsuspected by his neighbor, 
he may impose on such neighbor the necessity of bearing a 
heavy expense, if the latter has erected machinery for the pur- 
poses of mining, and discovers, when too late, that the appro- 
priation of the water has already been made. Further, the 
advantage on one side, and the detriment to the other, may bear 
no proportion. The wqII may be sunk to supply a cottage, or a 
drinking-place for cattle ; whilst the owner of the adjoining land 
may be prevented from winning metals and minerals of inestima- 
ble value. And, lastly, there is no limit of space within which 


the claim of right to an underground spring can be confined : in 
the present case, the nearest coal-pit is at the distance of half a 
mile from the well : it is obvious the law must equally apply if 
there is an interval of many miles. 

^^ Considering, therefore, the state of circumstances upon 
which the law is grounded in the one case to be entirely dis- 
similar from those which exist in the other ; and that the applica- 
tion of the same rule to both would lead, in many cases, to conse- 
quences at once unreasonable and unjust; we feel ourselves 
warranted in holding, upon principle, that the case now under 
discussion does not fall within the rule which obtains as to sur- 
face streams, nor is it to be governed by analogy therewith. 

" No case has been cited on either side bearing directly on the 
subject in dispute. The case of Cooper v. Barber, 5 Taunt. 99, 
which approaches the nearest to it, seems to make against the 
proposition contended for by the plaintiff. In that case, the de- 
fendant had for many years penned back a stream for the pur- 
pose of irrigation, in consequence of which the water had per- 
colated through a porous and gravelly soil into the plaintiff's 
land ; but as this percolation had been insensible, and unknown 
by the plaintiff until the land was applied for building purposes, 
the court held that the defendant had gained no right thereby, 
so as to justify its continuance. The case of Partridge v. Scott, 
S Mees. & W. 230, is an authority to show that a man, by 
building a house on the extremity of his own land, does not 
thereby acquire any right of easement, for support or otherwise, 
over the adjoining land of his neighbor. It is said, in that case, 
^^ he has no right to load his own soil, so as to make it require 
the support of that of his neighbor, unless he has some grant 
to that effect." It must follow, by parity of reason, that if he 
digs a well in his own land so close to the soil of his neighbor 
as to require the support of a rib of clay or of stone in his 
neighbor's land to retain the water in the well, no action would 
lie against the owner of the adjacent land for digging away 
such clay or stone, which is his own property, and thereby let- 
ting out the water ; and it would seem to make no difference as 
to the legal rights of the parties, if the well stands some dis- 
tance within the plaintiff's boundary, and the digging by the de- 
fendant, which occasions the water to flow from the well, is some 


distance within the defendant's boundary; which is, in sub- 
stance, the very case before us. 

'* The Koman law forms no rule, binding in itself, upon the 
subjects of these realms ; but, in deciding a case upon principle, 
where no direct authority can be cited from our books, it affords 
no small evidence of the soundness of tJie conclusion at which we 
have arrived, if it proves to be supported by that law, the fruit 
of the researches of the most learned men, the collective wisdom 
of ages, and the groundwork of the municipal law of most of 
the countries in Europe. The authority of one at least of the 
learned Roman lawyers appears decisive upon the point in favor 
of the defendants ; of some others the opinion is expressed with 
more obscurity. * * * * « 

" It is scarcely necessary to say that we intimate no opinion, 
whatever as to what might be the rule of law if there had been 
an uninterrupted user of the right for more than the last twenty 
years ; but, confining ourselves strictly to the facts stated in the 
bill of exceptions, we think the present case, for the reasons 
above given, is not to be governed by the law which applies to 
rivers and flowing streams, but that it rather falls within that 
principle which gives to the owner of the soil all that lies be- 
neath his surface ; that the land immediately below is his prop- 
erty, whether it is solid rock, or porous ground, or venous earth, 
or part soil, part water ; that the person who owns the surface 
may dig therein, and apply all that is there found to his own 
purposes at his free will and pleasure ; and that, if in the ex- 
ercise of such right he intercepts or drains off the water col- 
lected from underground springs in his neighbor's well, this in- 
convenience to his neighbor falls within the description of dam- 
num absque injuria^ which cannot become the ground of an 
action. We think, therefore, the direction given by the learned 
judge at the trial was correct, and that the judgment already 
given for the defendants in the Court below must be affirmed." 

§ 103. Rights of owners of land In subterranean 
streams and percolations — ^Water belonging to the soiL 

That the law as to subterranean waters differs from that affect- 
ing the rights to surface streams, and that in the former case 
the water belongs to the soil, is part of it, is owned and pos- 


sessed as the earth is, and may be used, removed, and controlled 
by the owner to the same extent, was also held in a New York 
case in 1867.^ It was an action to restrain the defendant from 
digging on his own land and thereby diverting the water from 
certain springs on one of the plaintiffs' lands, trom which the 
plaintiffs and others were^in the habit of obtaining their neces- 
sary supply of water. The lands were adjacent. There were 
no springs or water-courses on defendant's lands ; the water 
flowjgd to the springs by percolation through the defendant's 
soil and beneath the surface, and had no distinct and definite 
channel, or any known and defined course beneath the surface 
of the defendant's land. Before the commencement of the ac- 
tion the defendant sunk a ditch near the line between him and 
one of the plaintiffs named England, until such ditch cut off 
such percolation to some extent, and thereby interfered with and 
diminished to some extent the flow of waters in the springs, 
and laid a pipe in the ditch for the purpose of conducting such 
waters to his premises, and did so conduct the waters to his 
house, barn, and stables for ordinary domestic and farming use, 
ani^such waters were essential and necessary for the defendant, 
for the purposes aforesaid ; the plaintiffs had for many years 
owned and enjoyed the right to use the surplus waters running 
from the springs in the manner stated ; the defendant had no 
right to enter upon England's land, or to take water from the 
springs, or to divert the waters running therefrom into the reser- 
voirs from such natural channel, nor had he done any of these 
things unless by the digging of the ditch upon his own lands 
near the line and near the springs, and carrying the water ob- 
tained in such ditch in a pipe to his house, etc. 

Boardman, J., said : " The following principles of law appear 
to me, upon a careful examination, too well settled to admit of 
controversy : 

" 1. The law controlling the rights to subterranean waters is 
very different from that affecting the rights to surface streams. 
In the former case the water belongs to the soil, is part of it, is 
owned and possessed as the earth is, and may be used, removed, 
and controlled to the same extent by the owner. (Frasier v. 
Brown, 12 Ohio, 304, 311, where the defendant dug a hole 

1 Delhi V. YonmanSi 50 Barb. 316. 


in his land, which cut off and stopped the sonrces and supply 
of a spring which had previously risen in and supplied the 
plaintiff's land with water. Haldeman v. Bruckhart, 45 Penn. 
521, where the defendant, in opening a mine, cut off the sup- 
ply of water j|pi a natural spring on the plaintiff's land. The 
leading case of Acton v. Blundell, 12 Mees. & W. 336, ap- 
proved in Chasemore v. Richards, 7 H. L. Cas. 349, where the 
defendant in sinking a coal-mine cut off the supply of the plaint- 
iff's well, from the water of which plaintiff's mill was operated. 
Pixley V. Clark, 35 N. Y. 620, 526 ; Ellis v. Duncan, 21 fearb. 
230, presumed to have been affirmed at the March Term, 1864, 
of the Court of Appeals, from a reference thereto in Good- 
ale V. Tuttle, 29 N. Y. 466 ; Roath v. Driscoll, 20 Conn. R. 533 ; 
Chatfield v. Wilson, 28 Vt. 49 ; S. C. 31 Ibid. 358 ; Harwood 
V. Bruter, 32 Ibid. 724 ; New River Co. v. Johnson, 2 Ad. & E. 

"These and other cases establish the principle that no action 
will lie for injuries caused by cutting off subterranean waters 
percolating the soil, or running through unknown channels, and 
without a distinct or defined course. The head-note of Smith 
V. Adams, 6 Paige, 435, is adverse to this view, but the com- 
plaint in that action, which was to restrain such a diversion of 
waters, was dismissed for the want of jurisdiction, and the 
remarks of the chancellor on this subject are mere dicta^ and 
entitled to still less weight in view of the modification of the de- 
cree in that case on appeal. (^24 Wend. 585.) Nor is the case 
so fully reported as to show upon what precise facts it is based. 
In Wheatley r. Baugh, 25 Penn. 531, it is cited as author- 
ity, upon cutting off a subterranean stream^ and elsewhere it 
is criticised and doubted as applied to percolations. (Wash, on 
Easements, 2nd ed. 372, 385, 451, 463.) The cases of Balston 
V, Bensted, 1 Camp. 463, and Dickinson v. Gr. June. Canal 
Co. 7 Exch. 282, were dissented from and overruled in the 
House of Lords in the case of Chasemore v. Richards, ante. 
(See, also. Dexter v. Prov. Aqueduct Co. 1 Story, 387 ; Bassett 
V. Salisbury Manuf. Co. 43 N. H. 579.) 

^^ 2. An exception to this rule of law exists in the case of 
subterranean streams that have a known and well-defined chan- 
nel, constituting a regular and constant flow of water. Such 


Streams are subject to the same law with surface streams, and 
subject only to the like interruptions and interference. (Wheat- 
ley V. Baugh, supra ; Duddree v. Guardians, &c. 1 Hurl. & N. 
627 ; Frazier v. Brown, 12 Ohio, 300 ; Dickinson v. Gr. June. 
Canal Co. 7 Exch. 301 ; Whetstone v. Bowser, 2»4Price, 59 ; 45 
Ibid. 518.) 

^' 3. A further exception exists in case of an injury done by 
cutting off such waters with malice. No person can wantonly 
and maliciously cut off on his own land the underground supply 
of a neighbor's spring or well, without any purpose of usefulness 
to himself. (Greenleaf v. Francis, 18 Pick. 117 ; approved in 
Wheatley v. Baugh, 25 Pa. 531, and Boath v, DriscoU, 20 Conn. 
533 ; Parker v. Boston & Maine R. R. Co. 3 Cush. 107 ; Rad- 
cliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195.) Such 
also is the rule of the civil law. There are many acts, lawful in 
themselves, which become actionable if done with malice. (Pan- 
ton V. Holland, 17 Johns. 92 ; Brown v. lUius, 25 Conn. 583.) 

*'*' 4. The evidence tends to show that some of the plaintiffs 
had used the water in question for a period of more than twenty 
years, so that the plaintiffs, to that extent, claim a prescriptive 
right to its continued use in the same manner they have hereto- 
fore enjoyed such use. But reason and authority are alike 
hostile to such a claim as applied to this case. There can be 
no prescription where there is no adverse user, and there can 
be no adverse user without creating a right of action. Now 
the use of the plaintiffs in this case was in no sense adverse or 
hostile to the defendant : it took nothing which he had any right 
to use or enjoy; it gave him no right of- action ; he was in no 
respect injured, nor was any right of his encroached upon. 
The defendant could not prevent the plaintiffs from using the 
waters that ran from the springs. Consequently, no grant could 
be presumed from his silence or acquiescence. (Chasemore v* 
Richards, 2 Hurl. & N. 183 ; Dexter v. Providence Aqu. Co. 
1 Story, 393 ; Dickinson v. Grand Junction Canal Co. 7 Ex. 
282 ; Roath r. DriscoU, 20 Conn. 533 ; Wheatley v. Baugh, 25 
Pa. 528 ; Frasier v. Brown, 12 Ohio, 311 ; Haldeman v. Bruck- 
hart, 45 Pa. 519.) 

^^5. If the defendant's excavation or ditch drew the water 
from the plaintiff's spring, instead of stopping the flow of water 


from the defendant's land to such spring, then the defendant 
would be liable in this action. (Pixley v. Clark, 85 N. Y. 520 ; 
Dickinson v. Grand Junction Canal Co. 7 Ex. 282 ; Cooper v. 
Barb, 8 Taunt. 99.) But I do not understand from the evidence 
or the findings of the judge, any indication that such is the fact. 
It seems to .me plain that the defendant, in good faith and for 
his own necessary, domestic, and agricultural use, has dug this 
ditch upon his own lands to secure water. While he has in- 
dulged in unkind expressions, I see no reason to differ from the 
judge who tried the cause, in finding that his purpose was one 
of usefulness to himself and not of malice to his neighbors. 
The conclusions to which I have come are very ably presented 
in Wash, on Easements, 2nd ed. 440-467. They accord with 
the best interests of the general public. Proper cultivation 
of lands, working of mines, and public improvements are al- 
lowed. While injuries, as in this case, will be inflicted on 
some, it is better than to suffer lands to lay waste, or mines to 
be unworked, or public improvements to be stopped." 

Balcom, J., concurred in these views, and said : " The ques- 
tion in this case is, whether the defendant had the right to dig 
in his land to obtain water for domestic and culinary purposes 
at his house and to supply his horses and horned cattle at his 
barn, when by so doing he materially injured two springs of 
water that issued from adjoining land owned by the plaintiffs ; 
which springs had issued out of the plaintiffs' land from time 
immemorial ; but there was no surface flow of water above 
either of the springs or to either of them from the defendant's 
land, or from either of them to the defendant's land. This 
court decided, at a General Term in the Second District, in 
Ellis V. Duncan, 21 Barb. 230, that the owner of a farm may 
dig a ditch to drain his land, or open and work a quarry upon 
it, although by so doing he intercepts one of the underground 
sources of a spring on his neighbor's land, which supplies a 
small stream of water flowing through the land of each, and 
thereby diminishes the natural supply of water, to the injury of 
the adjoining* proprietor. And that the rule that a man has a 
right to the free and absolute use of his property, so long as he 
does not directly invade that of his neighbor, or consequentially 
injure his perceptible and clearly defined rights, is applicable to 


the interruption of the sub-surface supplies of a stream by the 
owner of the soil ; and the damage resulting from such an inter- 
ruption is not the subject of legal redress. 

" If the principle that the man who, by digging for a lawful 
and proper purpose on his land, interrupts a sub-surface stream, 
to the prejudice of his neighbor, commits a wrong for which the 
law will give redress, is sound, (in the language of Justice 
Strong) no one will be safe in purchasing land adjoining or 
near a private stream of water, as he may be restrained forever 
from making some valuable, and frequently, from the progres- 
siveness of the age, necessary improvements. 

" The decision in Ellis tj. Duncan, supra^ is sustained by the 
very able opinion of Chief Justice Tindal, in Acton tj. Blundell, 
12 Mees. & W. 324, in which the doctrine is laid down that a 
man who owns land upon which there is no surface flow of water 
may dig therein, and apply all that is there found to his own 
purposes, at his free will and pleasure ; and that if, in the exer- 
cise of such right, he intercepts or drains off the water collected 
from underground springs in his neighbor's well, this inconven- 
ience to his neighbor falls within the description of damnum 
absque injuria^ which cannot become the ground of an action. 
The chief justice, in that case, said : ' In the case of a well sunk 
by a proprietor in his own land, the water which feeds it from a 
neighboring soil does not flow openly in the sight of the neigh- 
boring proprietor, but through the hidden veins of the earth 
beneath the surface ; no man can tell what changes these under- 
ground sources have undergone in the progress of time ; it may 
well be that it is only yesterday's date that .they first took the 
course and direction which enabled them to supply the well.' 

" Every person buys land upon which there is no surface 
water with the expectation that he can dig cellars and wells in 
it for his own use and enjoyment, without interfering with the 
rights of adjoining proprietors in respect to anything in the 
lands of such proprietors. But when water runs across two 
pieces of land upon the surface, the purchaser of either piece 
sees, when he buys, that the proprietor of each piece has rights 
to such water, with which neither can legally interfere to the 
injury of the other. 

^^ If I have a spring of water issuing out of my land, which is 


injured or destroyed by my neighbor digging a well in his dry 
land to obtain water for agricultural or household purposes^ it 
is my misfortune. It is better that I be compelled to submit to 
the injury without redress, and dig for water on my land, 
than to deprive my neighbor of every use which he may prop- 
erly desire to make of his land that will interfere with my 
spring of water. This is a safer and less injurious rule than one 
that would enable me to prevent every adjoining proprietor from 
digging in or properly working his land for any purpose that 
would materially interfere with the natural flow of water from 
my spring. This doctrine is not only sustained by the decisions 
already cited, but it is supported by other adjudications. Put- 
nam, J., in delivering the opinion of the court in Greenleaf v. 
Francis, 18 Pick. 117, says : ' The proprietor, in the absence of 
any agreement subjecting his estate to another, may consult his 
own convenience in his operations above or below the surface of 
his ground. He may obstruct the light and air above, and cut 
off the springs of water below the surface.' The Court of Ex- 
chequer and House of Lords have decided that ' the owner of 
a mill on the banks of a river cannot maintain an action against 
a land-owner who sinks a deep well on his own land, and by 
pumps and steam-engine diverts the underground water which 
would otherwise have percolated the soil and flowed into the 
river, by which, for more than sixty years, the mill was 
worked.' (Chasemore v. Richards, 2 Hurl. & N. 168 ; 6 
Ibid. 982.) The decision in Smith v. Kenrick, 7 Man. Gr. & 
S. 514, also supports the doctrine I have enunciated. (Sjee 
Phear on Rights of Water, Law Lib. vol. 75, pp. 32, 83, 4th 

"The Supreme Court of Vermont decided, in Chatfield v. 
Wilson, 28 Vt. 49, that there are no correlative rights existing 
between the proprietors of adjoining lands in reference to the 
use of the water in the earth, or percolating under its surface ; 
that such water is to be regarded as part of the land itself, to 
be enjoyed absolutely by the proprietor within whose territory 
it is ; and to it the law governing the use of running streams is 
inapplicable. And that decision is supported by one of th« 
ablest opinions on the subject in the books. The decision in 
Roath V. DriscoU, 20 Conn. 532, ts like that in Chatfield v. Wil- 
son, supra. 


" In Goodale v. Tuttle, 29 N. Y. 459, Denio, C. J., said : 
• We have lately decided that the principles which apply to the 
obstruction of running streams do not govern in the case of wa- 
ters running under the soil.' The decision here referred to was 
made in Ellis v. Duncan, at the March' Term of the Court of 
Appeals, in 1864. But the opinion of the Court of Appeals in 
that case has not been reported. It probably is the same case 
decided by this court, and reported in 21 Barb., sxtpra; Judge 
Denio cited, approvingly, Acton v, Blundell, supra^ and Green- 
leaf V. Francis, supra^ and remarked: 'In these cases it was 
held that a liability did not attach to the act of one sinking a 
shaft on his own soil, by which the subterranean waters, which 
would otherwise have run under the plaintiff's soil, and hjive 
J)een useful to him, were cut off.' (29 N. Y. 466.) This doc- 
trine is approved in Pixley v. Clark, 36 Ibid. 620. In that case, 
Peckham, J., says: 'The principle which exempts a party from 
liability for digging upon and cultivating his own land as he 
pleases, though he may interfere with subterranean water, is de- 
signed for the benefit and protection of the land-owner.' He 
cites, among other cases, in support of his views, Rawstron v. 
Taylor, 33 Eng. L. & E. 428, and Broadbent v. Ramsbotham, 
34 Ibid. 663. Washburn, in his work on Easements, 2nd ed. 
411, says: 'If a person, without any intention to injure an ad- 
jacent owner, and while making use of his own land to any 
suitable and lawful purpose, cuts off, diverts, or destroys the use 
of an underground spring or current of water which has no 
known or defined course, but has been accustomed to penetrate 
and flow into the land of his neighbor, he is not thereby liable 
to any action for the diversion or stoppage of such water.' In 
Frasier v. Brown, 12 Ohio, 294, it was decided, where a land- 
owner digs a hole on his own land, for purposes connected with 
the use of his own land, thereby cutting off or diverting under- 
ground waters which have always been accustomed to percolate 
and ooze through his land to the land of an adjoining proprietor, 
and there to form the source of a spring and rivulet, any dam- 
age thereby occasioned to such adjoining proprietor is damnum 
absq^ie injuria. 

" Brown v. Illius, 25 Conn. 683, was a case for corrupting the 
plaintiff's well by means of noxious matter placed by the de- 


fendant on his adjoining land^ and in close proximity to the well, 
which was in part washed by the rains along the surface of the 
ground into the well, and in part soaked into the ground, and 
found its way under the surface into the well. And it is not at 
all in conflict with the previous decision of the same court in 
Roath V. DriscoU, supra. The case of Dickinson v. Grand Junc- 
tion Canal Company, 7 Exch. 282 ; S. C. 9 Eng. L. & E. 613, 
does not overrule Acton v. Blundell, supra. The cases are dis- 
tinguishable. (See Angell on Water-courses, sec. 114, p. 124.) 
Parker v. Boston & Maine Railroad Co. 3 Cush. 107, presented 
the question of the plaintiff's right to damages, under the stat- 
utes of Massachusetts, by drying up his well in consequence of 
the construction of a railroad near the well. It is not an au- 
thority for maintaining this action. * * * * 

" I am aware of the opinion (and it is supported by authority) 
that a person is liable to an action for maliciously digging in his 
own land for the sole purpose of destroying a spring of water 
issuing out of the land of his neighbor. But that is not this 
case ; for it is clear the defendant's object in digging in his land, 
notwithstanding his random declarations, was to obtain a proper 
supply of water at his house and barn on the same land. 

" The ruling of Lord Ellenborough, in Balston v. Bensted, 1 
Camp. 463, is against the right of the defendant in this case to 
dig for water in his land to the injury of the springs of water 
issuing from the plaintiff's land. But that ruling was made at 
Nisi Prius, and it does not appear that any authority was cited 
to the judge before it was made. That ruling was cited by 
Chancellor Walworth in support of his dictum, in Smith v. 
Adams, 6 Paige, 435, to the effect that the owner of land out of 
which a spring of water issues may restrain the owner of adjoin- 
ing land from digging in his own land so as to intercept the un- 
derground stream that supplies the spring with water. But the 
complaint in that case was dismissed with costs to the defend- 
ants; and it was unnecessary for the chancellor to determine 
whether the complaint could have been sustained, if the proofs 
had been different and the statutes had not required him to dis- 
miss the suit. His decision in that case, therefore, is not much 
authority for the plaintiffs' position in this action. The case of 
Dexter v. The Providence Aqueduct Company, 1 Story, 887, 


differs somewhat from this ; and it seems to be founded upon 
the ruling of Lord Ellenborough in 1 Campbell's Reports, 
iwpra. The reasoning of Bartlett, J., in Basset v. Salisbury 
Manufacturing Co. 43 N. H. 569, is in harmony with the 
decisions in Campbell and Story's Reports, supra. But the 
case is distinguishable from each of the cases in which those 
decisions were pronounced. It was for setting the water of a 
stream back, by means of a dam, so as to obstruct the natural 
drainage from the plaintiff's land, above the dam, to his injury. 
And I do not see how any one could doubt that such an action 
would lie. It differs widely from this case. There was no cer- 
tainty that the digging by the defendant in this case, in his land, 
would interfere in the least with the natural flow of the springs 
on the plaintiff's land, until such digging was nearly completed ; 
and the defendant is not responsible for what was done without 
his authority to the earth under the wall on the line between 
lands of the parties. That earth was broken away in the night, 
without the knowledge or consent of the defendant, by some of 
the deluded persons who were digging in the plaintiff's springs 
for gold they had heard had been secreted there. The question 
is not in the case whether the plaintiffs could maintain an action 
against the defendant for damages, for negligence or want of 
due care in digging in his land, close to the line of the plaint- 
iffs' land, to the injury of the plaintiffs' spring. For the action 
is brought to restrain the defendant from digging in his land, 
whatever his object or motives were, to the injury of the plaint- 
iffs' springs. Hence, the question to be decided is, whether the 
defendant had the right to dig in his land to obtain water for 
proper and necessary uses at his house and barn, which were on 
such land, when by so doing he materially interfered with the 
natural flow of water from the springs issuing from the lands of 
the plaintiffs adjoining the defendant's premises. 

"If the defendant were liable for digging in his land for 
water, for domestic or agricultural purposes, near the line of 
the plaintiffs' lands out of which their springs issue, because 
such digging materially lessened or prevented the flow of water 
from such springs, then he and all others would be liable for 
digging for a like proper purpose in their lands, though a half 
mile from the plaintiffs' springs, provided such digging would 


prevent the water issuing from such springs. Such a rule 
would create more vexation than it would do good, and it might 
become intolerable. The weight of authority is opposed to such 
a rule. The decisions in Campbell and Story's Reports, supray 
and the dictum of Chancellor Walworth in Smith v. Adams, 
8upra^ are overborne by the numerous opposing authorities I 
have cited." ^ On appeal to the Court of Appeals, the latter 
affirmed the judgment, and after stating that the action was for 
a perpetual injunction, restraining the defendant from digging 
upon his own land for a lawful purpose, the result of which was 
the diversion of the water, and preventing its flowing or perco- 
lating into two large and valuable springs on adjoining land, 
which supplied the village of Delhi with water, reiterated the 
doctrine that an action will not lie against an owner of land who, 
in digging a well upon his own premises, intercepted the perco- 
lation of underground currents of water, and thereby prevented 
their reaching the springs or open running stream on the soil of 
another. The rule is different when the water has actually 
reached and become a part of the spring or stream, and is sub- 
tracted from it. 

The court, in deciding the case, said: " If the action of the 
defendant took the water away from the springs after it had 
reached there, after it had become part of an open running 
stream, then this action would lie. (Rawstron v. Taylor, 38 
Eng. L. & E. 428 ; Broadbent v. Ramsbotham, 34 Eng. L. & E. 
553 ; Chasemore v. Richards, 7 House of Lords Cases, 349 ; 
Pixley V. Clark, 35 N. Y. 520 ; Goodale v. Tuttle, 29 Ibid. 459 ; 
Ellis V. Duncan, 21 Barb. 230, affirmed in this Court, but not 
reported.) But if it merely prevented the water from reaching 
the spring or open running stream, by intercepting its percola- 
tion or underground currents, by digging a well upon the de- 
fendant's own land for the use of his family and stock, this 
action will not lie. The law is settled in that way, both here 
and in England.* (See same cases.) The facts in this case, as 
found by the justice who tried it, do not show that the water has 
been taken away from the spring or running surface stream 
after it had reached there. On the contrary, the inference from 
his findings would rather seem the other way. Nor is there any 

1 Delhi V. Youmans, 50 Barb. 316; S. C. on appeal, 45 N. Y. 362. 


request to find otherwise, nor any exception on that point. 
Every inference and presumption that can be reasonably enter- 
tained must be indulged in favor of affirming a judgment. It 
is a well-settled rule that the party who alleges error must show 
it. The doctrine of lateral support of adjoining land cannot aid 
the plaintiff's case. I do not think it has any application to the 
facts as found. It may well be that the plaintiffs have been in- 
jured, legally injured, by the acts of the defendant ; but the facts 
as found do not make it appear. In the absence of any request to 
find, or exception to refusal to find, other facts, we cannot con- 
sider the evidence with a view to decide whether other facts 
may not be regarded as sufficiently proved." ^ 

It is almost impossible, were it desirable, to add anything to 
the authority and the reasoning of the line of leading cases of 
which I have made such free use upon the interesting subjects 
concerning which they treat. The decisions are remarkable 
alike for their learning, their cxhaustiveness, their logic, the 
well-known ability of many of the judges participating in their 
rendition, and for the unanimity with which the conclusions 
have been reached — sometimes by different routes. As stated 
at the outset, they constitute the best exposition of the law upon 
the subject. 

§ 104. Reasonable use of streams. — ^In the case of water 
running in defined channels upon the surface of the earth, the 
rule is that riparian proprietors have no absolute right to the 
water of the streams flowing by them, but merely the usufruct 
thereof. They may make a proper use of the water, and a 
party iJ not liable to a lower proprietor for abstracting water 
from the stream if no actual damas:e has been done.^ What is 
a reasonable use is to be decided from the facts— considering 
the size of the stream, and the amount abstracted. The de- 
fendant, for instance, is the owner and occupant of a mill stand- 
ing on his land above the land of plaintiffs, who are riparian 
owners on the same stream, and has, in operating his mill and 

1 Delhi V. Youmans, on appeal, 45 N. Y. 362. 

2 Wood V. Waud, 3 Ex. 748; Embrey i;. Owen, 6 Ex. 353; Elliott v. Company, 30 
Gush. 191; Seeley v. Brush, 36 Conn. 419; Chatfield v. Wilson, 31 Vt. 358; Gerrish 
9. Company, 30 N. H. 478; Dilling v. Murray, 6 Ind. 324. But see Wheatley v, 
Chrisman, 24 Pa. 298; Crooker v. Bragg, 10 Wend. 260. 

D. A. I.— 13. 


the works contained in it, used the water of the stream by 
means of a dam erected across it. The dam is of a magnitude 
adapted to the size of the stream, and the mode of using it is 
usual and reasonable according to the custom of the country. 
The defendant is not liable, though the plaintiffs are prevented 
from deriving benefits they might otherwise enjoy from the 

One riparian proprietor cannot maintain an action against an 
upper proprietor for a diversion of part of the water of a natu- 
ral water-course flowing through their lands, unless such diver- 
sion causes the plaintiff actual perceptible damage. This is 
undoubtedly on the ground that injuria sine damno will not 
support an action. The right to flowing water is a right inci- 
dent to the property in the land ; it is a right publici juris^ of 
such character that whilst it is common and equal to all through 
whose land it runs, and no one can obstruct or divert it, yet, as 
one of the beneficial gifts of Providence, each proprietor has a 
right to a just and reasonable use of it as it passes through his 
land ; and so long as it is not wholly obstructed or diverted, or 
no larger appropriation of the water running through it is made 
th^n a just and reasonable use, it cannot be said to be wrongful 
or injurious to a proprietor lower down. What is isuch a just 
and reasonable use may often be a difficult question, depending 
on various circumstances. To take a quantity of water from a 
large running stream for agricultural or manufacturing pur- 
poses would cause no sensible or practical diminution of the 
benefit to the prejudice of a lower proprietor, whereas, taking 
the same quantity from a small running brook, passing through 

1 Keeny v. CompSny, 39 Conn. B76. 
^ In ascertaininfi; what is a reasonable use, the general customs of the country 
and the local customs along the stream may be taken into consideration, and 
such rule should be laid down as is best calculated to secure the entire water of 
the stream to useful purposes. Each case must stand upon its own facts. 
(Keoney &c. v. Company, 39 Conn. 576; Hetrich v. Deachler, 6 Pa. 32; Du- 
mont V. Kellogg, 29 Mich. 420; Davis v. Winslow, 51 Me. 264; Snow v. Parsons, 
28 Vt. 469; Tyler i;. Wilkinson, 4 Mason, 397; Timm v. Bear, 29 Wis. 264; Davis 
V. Getchell, 60 Me. 602; Hayes v. Waldron, 44 N. H. 580; Pool v. Lewis, 41 Ga. 
162; S. C. 5 Am. R. 526; Holden t>. Company, 53 N. H. 552; Dilling v. Murray, 

6 Ind. 324; Parker v. Hotchkiss, 25 Conn. 321; Gould v. Company, 13 Gray, 442.) 
Whatever damage is incidental to a reasonable use of the water of a running 
stream is damnum absque injuria. (Cases cited supra, and Chandler t7. Howland, 

7 Gray, 348; Pitts v. Lancaster Mills, 13 Met. 166: Bliss v, Kennedy, 43 HL 68; 
Hartzall v. Sm, 12 Pa. 248. ) 


many farms, would be of great and manifest injury to those be- 
low, who need it for domestic supply or watering cattle ; and 
therefore it would be an unreasonable use of the water, and an 
action would lie in the latter case, and not in the former. It is 
therefore to a considerable extent a question of degree ; still the 
rule is the same, that each proprietor has a right to a reasonable 
use of it for his benefit for domestic use, and for manufacturing 
and agricultural purposes ; and each lower proprietor has not a 
right to the full apd entire fiow of the natural stream without 
diminution, acceleration, or retardation of the natural current; 
because it would otherwise follow that each lower proprietor 
would have a right of action against any upper proprietor for 
taking any portion of the water of the stream for any purpose. 
Such a taking would be a disturbance of his right ; and if taken 
by means of a pump, a pipe, a drain, or otherwise, though 
causing no substantial damage, it would be a nuisance, and war- 
rant the lower proprietor in entering the close of the upper to 
abate it. It would also follow that no proprietor could have 
any beneficial use of the stream without an encroachment on 
another's right.^ So that while the right to the use of flowing 
water is publici juris^ and common to all riparian proprietors, 
yet it is not an absolute and exclusive right to all the water 
flowing past their land, so that any obstruction will give a cause 
of action ; but it is a right to the flow and enjoyment of the 
water subject to a similar right in all the proprietors to its rea- 
sonable enjoyment.^ This is now what may be considered the 
settled doctrine ; ^ though there are a few cases to the contrary, 
and which hold that the right to the use of the water of a run- 
ning stream is absolute, and that any diminution of the water 
by an upper proprietor is actionable, just as an entry upon land 
without license is actionable.^ It seems also to be established 

lEUiott t7» Fitchburgh R. R. Co. 10 Cash. 191; Bealey v. Shaw, 6 East, 208; 
Buncombe v. Randall, Het. 32; Williams v. Morland, 2 Bam. & G. 910; 4 Dowl. 
& R. 583; Wright v. Howard, 1 Sim. & St. 190. 

3 Cases last cited, and Blanchard v. Baker, 8 Greenl. 253; Webb v. Company, 
3 Sum. 189; Tyler v. Wilkinson, 4 Mason, 397; Anthony v. Lapham, 5 Pick. 175; 
Van Hoesen v. Coventry, 10 Barb. 518. 

« Chatfield v. Wilson, 31 Vt. 368; Wadsworth v. Tillotson, 15 Conn. 366; Gmett 
9. Johnson, 30 Conn. 180; Seeley v. Brash, 35 Conn. 419; Gerrish v. Company, 30 
N. H. 478; Wood v. Waud, 3 Ex. 748; Embrey v, Owen, 6 Ex. 363; PolUtt v. 
Long, 58 Barb. 20; Mason %j. Hill, 3 Bam. & Ad. 304. 

4 Crocker o. Bragg, 10 Wend. 260; Wheatley t;. Chrisman, 24 Pa. 296. 


by the weight of authority that water may be diverted from 
streams for the purposes of irrigation, if the use is reasonable ; 
and if this is established, the effect which such use may have, 
in case of deficiency, upon proprietors lower down the stream, is 
not much regarded.^ 

In Massachusetts, it is held that an owner of land containing 
a natural stream of water has a right to the reasonable use of 
the water for mill privileges and purposes, and for other pur- 
poses, whatever may be the effect upon lowef proprietors ; and 
he is not liable to an action for obstructing and using the water 
for his mill, if it appears that his dam is only of such magnitude 
as is adapted to the capacity and size of the stream and to the 
quantity of water usually flowing therein, and that his manner 
of using the water is not unusual nor unreasonable, according 
to the usual custom of the country in similar cases and as to 
similar streams ; and this where even a city is the plaintiff, and 
the use of the water for sewerage, for extinguishing fires, and 
for other purposes essential to the health and safety of the city, 
is to some extent impeded,^ As to natural running streams, 
whether navigable or non-navigable, no superior rights can be 
acquired at common law by one riparian proprietor over an- 
other, by mere prior appropriation.^ Each is entitled to the 
enjoyment and use of the stream substantially according to its 
natural flow, subject only to such interruption as is necessary 
and unavoidable in its reasonable and proper use by others. 
Sometimes, however, by statute, an exclusive use has been al- 
lowed, as for manufacturing purposes, and upon making com- 

^ Nnttall V. Bracewell, Law R. 2 Ex. 1 ; Embrey v. Owen, 6 Ex. 353; Miner o. 
Gilmour, 12 Moore P. C. C. 131; Chatlield v, Wilson, 31 Vt. 358; "Wadsworth v. 
Tillotaon, 16 Conn. 366; Tolle v. Correth, 31 Tex. 362. 

2 Springfield v, Harris, 4 Allen, 494; Thurber v. Martin, 2 Gray, 394; Gould i;. 
Company, 13 Gray, 442; Tourtellot v. Phelps, 4 Gray, 376; Snow v. Parsons, 28 
Vt. 459; Pool v. Lewis, 41 Ga. 162; Clinton v. Myers, 46 N. Y. 611; Davis t;. 
GetcheU, 60 Me. 602; Pitts v. Mills, 13 Met. 166; Merrifield v. Worcester, 110 
Mass. 216. 

< Mason v. Hill, 3 Bam. & Adol. 304; Tyler v, Wilkinson, 4 Mason, 397; Bliss 
V, Kennedy, 43 m. 67; Dumont v. KeUogg, 29 Mich. 420; Keeney &c. t;. Com- 
pany, 39 Conn. 676. 

4 Gould V. Company, 13 Gray, 442; Fuller v. Company, 16 Gray, 43; Lincoln v, 
Chadboume, 66 Me. 197. 


§ 105. Pollution by sewage — City's liability. — ^If a stream 
become fouled by the emptying into it of city sewers, to the 
injury of a riparian proprietor, the latter cannot recover against 
the city, so far as the pollution is owing to the plan of sewerage 
adopted by the city under its charter, but he can recover for it 
so far as it is attributable to the improper construction or un- 
reasonable use of the sewers, or to the negligence or other fault 
of the city in the care or management t)f them.^ 

In the case of Merrifield v. Worcester,^ the justice who de- 
livered the opinion, in speaking of this right to have water 
descend in its pure state, after citing some of the authorities, 
says : " So the natural right of the plaintiff to have the water 
descend to him in its pure state, fit to be used for the various 
purposes to which he may have occasion to apply it, must yield 
to the equal right of those who happen to be above him. 
Their use of the stream for mill purposes, for irrigation, water- 

1 Merrifield v. City of Worcester, 110 Mass. 216. See, also, Perry v. AVorcester, 
6 Gray, ^44; Sprague v. Worcester, 13 Gray, 193; Flagg v. Worcester, 13 Gray, 
601; Barry v. Allen, 8 Allen, 127; Turner v. Dartmouth, 13 Ibid. 291; Emery v. 
Lowell, 104 Mass. 13; Child v. Boston, 4 Allen, 41. Some cases hold that when a 
city, in grading its streets or constructing gutters, drains, or repairs upon or in 
them, casts water or injurious drainage upon adjoining grounds, in an unusual 
place, or in considerable quantities, it is liable for the damage done. (McCord 
V. High, 24 Iowa, 336; Rowe v, Addison, 34 N. H. 306; Thurston v. St. Joseph, 
61 Mo. 510; Aurora v. Reed, 57 111. 33; Nevins 7-. City of Peoria, 41 HI. 502.) 
Other cases hold that a municipal corporation has the right to cause the water 
collecting in the gutters of buildings and streets to flow upon land (its natural 
outlet) in a single stream, when otherwise it would have flowed over the laud in 
small currents. (Phinizy v. Augusta, 47 Ga. 260; Hough r. Doylestown, 4 
Bi6W8t. 333. See Snow v. Parsons, 28 Vt. 459.) 

3 110 Mass. 216 — Blanchard & Weeks' Leading Cases on Mines and Mining 
Water Rights, p. 723. 

Upon the exemption of municipal bodies from liability, and the correspond- 
ing subordination of individual rights and interests to the safety, health, and 
welfare of the general public, see: Baker v. Boston, 12 Pick. 184; Taylor v. Ply- 
mouth, 8 Met. 462; Commonwealth t;. Tewksbury, 11 Met. 55: Commonwealth 
V. Alger, 7 Cush. 53, 85; Belcher v. Farrar, 8 Allen, 325. 

That no action will lie to interrupt mere surface-drainage, see : Parks r. New- 
bu/yport, 10 Gray, 28; 9 Cush. 171; 11 Cush. 192; 13 Gray, 603; Angellou Waterc. 
108r; Burr v. Mills, 21 Wend. 290; Colt v. Lewiston, 36 N. Y. 217; Waffle v. N. Y. 
Gen. R. R. 58 Barb. 413; Livingston r. McDonald, 21 Iowa, 160; Thayer v. Brooks, 
17 Ohio, 491: Miller v. Lauback, 47 Pa. St. 154; Lane v. Jasper, 39 111. 54; Adams 
V. Walker, 34 Conn. 466. 

That the public may improve grounds and streets, though water is cast on ad- 
joining grounds, see: Parks v. Newburyport, 10 Gray, 28; Flagg v. Worcester, 13 
Gray, 601; Dickinson v. City, 7 Allen, 19; Turner v. Dartmouth, 13 Allen, 291; 
Emery v. City &c. 104 Mass. 13. See 55 Mo. 119. 


ing cattle, and the manifold purposes for which they may law- 
fully use it, will tend to render the water more or less impure. 
Cultivating and fertilizing the lands bordering on the stream, 
and in which are its sources, their occupation by farm-houses, 
and other erections, will unavoidably cause impurities to be car- 
ried into the stream. As the lands are subdivided, and their 
occupation and use becoq^e multifarious, these causes will be 
rendered more operative, and their effects more perceptible. 
The water may thus be rendered unfit for many uses for which it 
had before been suitable ; but so far as that condition results only 
from reasonable use of the stream in accordance with the com- 
mon right, the lower riparian proprietor has no remedy. When 
the population becomes dense, and towns or villages gather along 
its banks, the stream naturally and necessarily suffers still 
greater deterioration. Roads or streets crossing it, or running 
by its side, with their gutters and sluices discharging into it 
their surface-water collected from over large spaces, and carry- 
ing with it in suspension the loose and light material that is thus 
swept off, are abundant sources of impurity against which the 
law affords no redress by action." 

§ 106. Injuries to artificial water-courses. — In the case 
of an artificial water-course, made for a particular and tempo- 
rary purpose, its water having been originally taken with notice 
that it might be discontinued, and the circumstances not being 
such as to afford any presumption of a grant, the lessee of the 
owner of the land through which the water-course was made 
was held not to have acquired by user any perpetual right to 
the uninterrupted continuance of the water-course. Its discon- 
tinuance was damnum absque injuria. This doctrine was laid 
down in the leading case of Arkwright v. Gell (5 Mees. & W. 
226.) In that case the stream upon which certain mills were 
constructed was not a natural water-course, to the advantage of 
which, flowing in its natural course, the possessor of adjoining 
land would be entitled, according to the doctrine laid down in 
Mason v. Hill, 5 Barn. & Ad. 1, and in other cases. It was an 
artificial water-course, and the sole object for which it was made 
was to get rid of a nuisance to certain mines, and to enable their 
proprietors to get the ores which lay within the mineral field 


drained by it ; and the flow of water through that channel was, 
from the very nature of the case, of a temporary character, hav- 
ing its continuance only whilst the convenience of the mine-own- 
ers required it, and in ordinary course it would most probably 
cease when the mineral ore above its level was exhausted. 
Parke, B., in deciding the case, said : " What, then, is the spe- 
cies of right or interest which the proprietor of the surface where 
the stream issued forth, or his grantees, would have in such a 
water-<;ourse, at common law, and independently of the effect of 
user under the recent statute, 2 and 3 Will. IV, chap. 71 ? He 
would only have a right to use it, for any purpose to which it 
was applicable, so long as it continued there. An user for 
twenty years, or a longer time, would afford no presumption of 
a grant of the right to the water in perpetuity ; for such a 
grant would, in truth, be neither more nor less than an obliga- 
tion on the mine-owner not to work his mines by the ordinary 
mode of getting minerals, below the level drained by that 
sough, and to keep the mines flooded up to that level, in order 
to make the flow of water constant, for the benefit of those who 
had used it for some profitable purpose. How can it be sup- 
posed that the mine-owners could have meant to burden them- 
selves with such a servitude, so destructive to their interests ? 
and what is there to raise an inference of such an intention ? 
The mine-owner could not bring any action against the person 
using the stream of water, so that the omission to bring an 
action could afford no argument in favor of the presumption of 
a grant ; nor could he prevent the enjoyment of that stream of 
water by any act of his, except by at once making a sough at 
a lower level, and' thus taking away the water entirely — a course 
so expensive and inconvenient that it would be very unreason- 
able, and a very improper extension of the principle applied to 
the case of lights, to infer, from the abstinence from such an 
act, an intention to grant the use of the water in perpetuity, as 
a matter of right. 

" Several instances were put, in the course of the argument, of 
cases analogous to the present, in which it could not be con- 
tended for a moment that any right was acquired. A steam- 
engine is used by the owner of a mine to drain it, and the water 
pumped up flows in a channel to the estate of the adjoining land- 


owner, and is there u^ed for agricultural purposes for twenty 
years. Is it possible, from the fact of such an user, to presume 
a grant by the owner of the steam-engine of the right to the 
water in perpetuity, so as to burden himself and the assigns of 
his mine with the obligation to keep a steam-engine forever, 
for the benefit of the land-owner ? Or, if the water from the 
spout of the eaves of a row of houses was to flow into an ad- 
joining yard, and be there used for twenty years by its occu- 
piers for domestic purposes, could it be successfully contended 
that the owners of the houses had contracted an obligation not 
to alter their construction so as to impair the flow of water ? 
Clearly not. In all, the nature of the case distinctly shows that 
no right is acquired as against the owner of the property from 
which the course of water takes its origin ; though, as between 
the first and any subsequent appropriator of the water-course 
itself, such a right may be acquired. And so, in the present case, 
Sir Richard Arkwright, by the grant from the owner of the sur- 
face for eighty-four years, acquired a right to use the stream as 
against him ; and if there had been no grant, he would, by 
twenty years' user, have acquired the like right as against such 
owner. But the user, even for a much longer period, whilst the 
flow of water was going on for the convenience of the mines, 
would afford no presumption of a grant at common law as 
against the owners of the mines. 

" It remains to be considered whether the statute 2 and 3 Will. 
IV, chap. 71, gives to Mr. Arkwright, and those who claim 
under him, any such right ; and we are clearly of opinion that 
it does not. The whole purview of the act shows that it applies 
only to such rights as would before the act have been acquired 
by the presumption of a grant from long user. The act ex- 
pressly requires enjoyment for different periods, " witlumt inter- 
ruption^^^ and therefore necessarily imports such an user as could 
be interrupted by some one " capable of resisting the claim " ; 
and it also requires it to be " of right." But the use of the 
water in this case could not be the subject of an action at the 
suit of the proprietors of the mineral field lying below the kvel 
of the Cromford Sough, and was incapab|p of interruption by 
them at any time during the whole period, by any reasonable 
mode ; and as against them it was not ^' of right " ; they had no 


interest to prevent it ; and until it becam6 necessary to drain the 
lower part of the field, indeed at all times, it was wholly imma- 
terial to them what became of the water, so long as their mines 
were freed from it. We therefore think that the plaintiffs 
never acquired any right to have the stream of water continued 
in its former channel, either by the presumption of a grant, or by 
the recent statute, as against the owners of the lower level of 
the mineral field, or the defendants acting by their authority, 
and therefore our judgment must be for the defendants." 

We have already adverted to the conflict of authority exist- 
ing upon the subject of surface drainage ; ^ a few more remarks 
will illustrate the unsettled condition of the law. The passage 
of water from rain and melting snow over the surface of land 
for twenty years, has been held to give no right to its continu- 
ance.^ And so with water raised by a steam-engine from a 
mine, or flowing from the eaves of houses — the use by the owner 
of adjoining land is held to give no claim to a continuance of the 
flo^.^ On the other hand, it is said that an owner below can- 
not recover damages from one above for increasing the volume 
of water in the stream by draining into it, but an action will 
lie for draining water standing upon the land of one upon that 
of another.* In New York it is held that as to the running off 
of surface water caused by rain or snow, an owner of land 
cannot be prevented from filling up the wet and marshy places 
upon his own soil for its amelioration and for his own benefit, 
although the effect may be to incommode his neighbor.^ In a 
case in England, a pit in plaintiff's land adjoining defendant's 
land had been principally supplied with water coming from de- 
fendant's land through an agricultural drain for the better culti- 
vation of the ground, and which water flowed thence into a ditch, 
and then into the pit. The drain came from a hillside through 
the defendant's land, through a wet and boggy soil, and not from 
any ascertained source, but it aided in effecting the general sur- 
face drainage of defendant's land. The defendant, for the pur- 
pose of more effectually draining and cultivating his ground, 

1 Ante^ sec. 94. 

2 Park V, Newburyport, 10 Gray, 28. See AHhley r. Wolcott, 11 Cush. 192. 
» Arkwright v. Gell. Gale & W. 182; S. C. 5 Mees. & W. 226. 

* Miner r. Laiibacli, 47 Pa. 154. 
» Goodale v. Tuttle, 29 N. Y. 467. 


deepened the course of an old drain, and by making a communi- 
cation between it and the drain which fed the plaintiff's pit, di- 
verted the water from the pit. The immediate object was to 
get a better fall of water from defendant's land, which previ- 
ously had been too wet and boggy to be productive. The court 
held that no grant of the flow of the water was to be presumed 
in the case in favor of the plaintiff, and that the plaintiff had 
no right of action against the defendant for the diversion of the 
water.^ In cases where the facts warranted the courts in finding 
that there was a regular defined channel, so as to amount practi- 
cally to a natural water-course, parties have been held liable both 
for obstructing and diverting the flow of the water.^ In Iowa, 
it was held that if a ditch made by the defendant for the purpose 
of drainage, and which terminated within sixty feet of the line 
of the plaintiff's land, had the effect to increase the quantity of 
water on the plaintiff's land to his injury, or threw it upon the 
land in an unusual manner to his injury, the defendant would 
be liable even though the ditch was constructed by the defend- 
ant in the course of the ordinary use and improvement of his 
farm.* In Wisconsin, it is held that the owner of land on which 
there is a pond or reservoir of surface water, cannot lawfully 
discharge it through an artificial channel upon the land of 
another, or so near it as to cause damage.^ The rule often ap- 
plied to municipal corporations is that while they are not bound 
to construct sewers or drains to protect adjoining owners against 
the flow of surface waters from the public ways, yet if they 
actually construct such as must carry water upon the adjacent 
lands, they are as liable as if they had invaded such lands by 
sending in their agents or servants.^ 

1 Greatrex v. Hay ward, 20 Eng. L. & E. 377. To same effect— Rawstron o. 
Taylor, 23 Eng. L. & E. 428; S. C. 11 Exch. 3(39. 

2 Earl V. De Hart, 1 Beasl. 280; Gillet v. Johnson, 30 Conn. 180; Phoenix &c. 
V. Fletcher, 23 Cal. 281 ; Pillsbury v. Moore, 4A Me. 154; Natoma &c. v. McCoy, 23 
Cal. 490; Duke v. Elgin, 7 Eng. L. & E. 39. 

s Livingston v. McDonald, 21 Iowa, 160. See Reynolds v. Clark, Ld. Raym. 
1399; Laney v. Jasper, 39 111. 46; Adams v. Walker, 34 Conn. 466. 

4 Pettigrew v. Evansville, 25 Wis. 223. See, also, Proctor v. Jennings, 6 Nev. 
83; Butler v. Peck, 16 Ohio N. S. 334. 

« Nevins v. Peoria. 41 111. 502; Alton v. Hope, 68 111. 167; Aurora v. GiUett, 56 
ni. 132; Gould r. Booth, 66 N. Y. 62; Ashley v. Port Huron, 35 Mich. 296; Petti- 
grew V. Evansville, 25 Wis. 223. 


§ 107. Artificial watar-conrseB — Two classes — ^Distinc- 
tions. — ^These may be divided into two classes : 1. Where the 
supply of the water-course is itself created by art; and 2. 
Where new and artificial channels are made to serve, in whole 
or in part, the purposes of natural conduits of water flowing 
upon or issuing from the earth. 

" The first great distinction," says Washburn, " between nat- 
ural and artificial water-courses is, that while the use of the one 
is incident to the ownership of the land itself in which it exists, 
that of the other may exist merely as an easement in such land, 
belonging to another than the owner of the land. And the dis- 
tinction between the two classes of artificial water-courses may 
be generally stated to be, that if the supply of water be artifi- 
cially created, as well as the course in which it is made to flow, 
no property like that of a perpetual easement can be acquired 
in the water by the use thereof, especially if the original pur- 
poses of its creation were temporary in their nature ; while if 
the artificial course be a substitute for a natural one in conduct- 
ing the flow of a permanent stream of water, an easement, in the 
case of such water, may be acquired, by the owner of the land 
through which it passes, by an enjoyment thereof for a requisite 
period of time." ^ While in such cases as Arkwright v. Gell, 
the land-owner over which the water flows would have no right 
to divert the water — since to him it is, as to the riparian propri- 
etors below, as a natural stream — it would not be competent for 
the mine-owner, though he might stop it, to foul or corrupt the 
same, to the injury of the proprietors upon the stream. To that 
extent, if suffered to flow, it had the incidents of a natural stream, 
even as against the one who had created it.*'' 

In Wood V. Waud, 3 Exch. W. H. & G. 748, the parties had 
mills upon a small natural stream. A portion of their supply 
of water came from two different mines, from one of which a 
stream had flowed for sixty years, by means of an artificial out- 
let, dug by the owner of the mine for the purpose of draining 
his mine. From the other mine a stream of water flowed, which 
was caused by pumping. These streams flowed through sepa- 

1 Washburn on Easements and Servitudes, 294 ; Arkwright v. Gell, 5 Mees. & 
W. 203. 
^ Washburn on Easements and Servitudes, 296. 


rate soughs into the natural stream. One of these passed under- 
ground, through the defendant's land, before reaching the plaint- 
iff 's land, and then through that into the stream. The other did 
not pass through plaintiff 's land before reaching and discharging 
itself into the stream. The action was for diverting or interfer- 
ing with the enjoyment of the water flowing from these soughs. 
Whatever the defendant did in this respect was done by him 
upon his own land before they had entered and united with the 
waters of the natural stream, and before the water of the sough 
that run through plaintiff's land had reached the latter. 

The exposition of the principles regulating the law of natural 
streams, as laid down in Mason v. Hill, 3 Barn. & Adol. 306 ; 
6 Ibid. 1 ; and in 8 Kent's Commentaries, 439 ; and Tyler «. 
Wilkinson, 4 Mason, U. S. R. 397, per Story, J., was approved.* 
Ark Wright v. Gell, supra^ was also approved. Pollock, C. B., 
remarked that the question arose with respect to an artificial 
stream not yet united to a natural one, and he then continued : 
" The proprietor of the land through which the Bowling Sough 
flows has no right to insist on the colliery owners causing all 
the waters from their works to flow through their land. These 
owners merely get rid of a nuisance to their works by discharg- 
ing the water into the sough, and cannot be considered as giving 
it to one more than another of the proprietors of the land 
through which that sough is constructed. Each may take and 
use what passes through his land, and the proprietor of land 
below has no right to any part of that water until it has reached 
his own land. He has no right to compel the owners above to 
permit the water to flow through their land for his benefit; and 
consequently he has no right of action if they refuse to do so. 
If they pollute the water, so as to be injurious to the tenant 
below, the case would be different. The plaintiffs were held to 
have no right of action for the diversion of that water. The 
question as to the other sough was considered still less favorable 
to the plaintiffs, for this sough did not pass through their land at 
all." No action, therefore, will lie for an injury by the diver»ion 
of an artificial water-course, where from the nature of the case 
it is obvious that the enjoyment of it depends upon temporary 

iSee, also, Acton v. Blundell, 12 Mees. & W. 324; Sury r. Pigott, Poph. 169; 3 
Bulst. 339; Brown v. Best, 1 Wila. 174. 


circumstances and is not of a permanent character, and where 
the interruption is by a person who stands in the nature of a 
grantor.^ This, if sanctioned, would present a case of the servient 
owner being allowed to compel the dominant one to continue a 
discharge of water and to prevent him from altering its course, 
and thus to invert their relative positions. No such right exists 
in the servient proprietor .^ 

The distinction is to be observed between the right of a lower 
riparian proprietor to water flowing in a natural stream, and to 
that created and flowing in an artificial one, for a temporary 
purpose : that in the former case an action will lie for its diver- 
sion 'by an upper proprietor, although done in his own land ; in 
the latter case it will not, unless the same shall have reached 
and become a part of a natural stream. Such diversion, how- 
ever, should be made not wantonly or maliciously, but* in the 
prosecution of some legitimate business.^ 

The doctrine of the case of Magor v. Chadwick, 11 Ad. & E. 
571, was correct as applied to the facts of the case in hand. 
Doubt has, however, been cast upon some of the broad principles 
enunciated in that case. It may be inferred, from Magor v. Chad- 
wick, that the law of water-courses, whether natural or artificial, 
is much the same. But Cresswell, J., in Sampson v. Hodnott, 1 
Com. B. N. S. 590, referring to the distinction between an arti- 
ficial drain and a natural stream, says that ^' all authorities, from 
the Digest downward, show that there is a distinction." * 

It is a well settled principle that a servient proprietor of land 
cannot complain of any use which the dominant proprietor may 
make of the water in a stream, so long as he is not sensibly 
affected by that use. The dominant proprietor may divert the 
water from its usual channel, but if it is returned to the same 

1 Wood V. Waud, 3 Exch. W. H. & G. 747. 

> Gale on Easements, 181 ; Arkwright v. QelU supra ; Duncan v. Bancroft, 110 
Mass. 267; Waffle v. N. Y. Central R. R. Co. 53 N. Y. 11; 58 Barb. 413; 2 Washb. 
R. Pr. •72. 

s Wasbbnrn on Easements, 298. 

The right of a party to an artiticial water-course, as against the party creating 
it, must depend iipou the character of the water-course, and the circumstances 
under which it was created. (Greatrex v. Hay ward, 8 Ex. W. H. & G. 290; 
Wood V. Waud, tupra. See, also, Magor v. Chadwick, 11 Ad. & E. 671.) 

* See American Co. v. Bradford, 27 Cal. 360; Union Water Co. v, Crary, 25 Cal. 
804; Yale's Mining Claims, 203, 204, 306; Wood v. Waud, 3 Ex. W. H. & G. 747. 


channel before it reaches the land of the next proprietor below, 
no one can complain.^ 

§ lOB. Increasing the flow. — Almost the whole law of 
water -courses is founded on the maxim of the common law, 
aqua currit et debe currere^ etc. Because water is descendible by 
nature, the owner of a dominant or superior heritage has an 
easement in the servient or inferior tenement, for the discharge 
of all waters which by nature rise in, or flow or fall upon, the 
superior. Hence, the owner of a mill has an easement in the 
land below, for the free passage of the water from the mill in 
the natural channel of the stream, accompanied with a right to 
enter upon the land for the purpose of clearing t>ut the stream 
and removing obstructions to the free flow of the water. The 
superior proprietor may improve his lands by throwing increased 
waters upon his inferior through the natural and customary 
channels, and this is the principle as to both agricultural and 
mining operations. It is to be maintained, but prudently ap- 

1 Norton v. Valentine, 14 Vt. 239. 

Doctrine of artificial water-courses as applied to canals, ditches, and flumes 
in the mining regions of California: See American Co. v. Bradford, 27 Cal. 360; 
Union Water Co. v. Crary, 25 Cal. 504; Gregory v. Harris, 43 Cal. 38; McDonald 
t;. Bear R. W. Co. 13 Cal. 220; Ortman v. Dixon, 13 Cal. 33; Surge v. Undeif- 
wood, 6 Cal. 45; Weimer v. Lowry, 11 Cal. 104; Courtwright v. Bear River Co. 30 
Cal. 573; Conger v. Wearer, 6 Cal. 548; Kelly v. Natoma Water Co. 6 Cal. 105; 
Kimball v. Gearhart, 12 Cal. 27;, Weaver v. Eureka Lake Co. 15 Cal. 272; James 
t;. Williams, 31 Cal. 211; Richardson v. Kier, 37 Cal. 263; McGregor r. Newton. 
23 Cal. 340; Broder t;. Natoma W. & M. Co. 50 Cal. 621; Ramsey v. Chandler, 3 
Cal. 93; Stone v. Bumpus, 46 Cal. 218; McDonald v. Askew, 29 Cal. 200; Reed v. 
Spicer, 27 Cal. 57. Condemnation of water for mining purposes: Merced Water 
Co. V. Cowles, 31 Cal. 215; Bliss v. Kingdom, 46 Cal. 651. 

^Kauffman v. Griesemer, 26 Pa. 407; Martin v. Riddle, 26 Pa. 415; Presoott v. 
Williams, 5 Met. (Mass.) 429; Williams v. Gale, 3 Har. & J. (Md.) 231. But see 
Merritt v. Parker, 1 Coxe, (N. J.) 460; Bentz v. Armstrong, 8 W. & S. 401. 




§ 109. Judicial officers, liability of. 

§ 110. Responsibility of judicial officers for striking attorney's name from the 

§ 111. Ministerial officers. 
§ 112. Acts of sheriffs. 
§ 113. Public officers. 
§ 114. Naval and military officers. 

§ 109. Judicial officers, liability of.— No judicial officer 
is responsible in damages for his errors and mistakes if he has 
jurisdiction to act, and acts honestly and in good faith. No 
misapprehension or mere errors of judgment will render him 
responsible in a civil action if there is jurisdiction of the subject- 
matter. Chitty has declared that " an action cannot be main- 
tained against a civil or ecclesiastical judge or justice of the 
peace acting judicially in a matter within the scope of his juris- 
diction, although he may decide erroneously in the particular 
case. Nor can an action be'maintained against a juryman, or the 
Attorney-General, or a superior military or naval officer for acts 
done in the execution of his office, and within the purview of 
his general authority." ^ Chief Justice Kent said that a judicial 
offiger is not bound to decide correctly either in matter of law 
or of fact, but only according to his convictions ; and this prin- 
ciple, he says, has a deep* root in the common law.^ It has been 
held that this rule does not apply where he has no jurisdiction 
of the subject-matter.^ And if the officer assumes to act in such 
a case he may be liable in damages.^ But it is also held that a 
judicial officer who merely misjudges of his jurisdiction, where 

3 1 Ch. on PI. 78. 

> Lansing v. Yates, 5 Johns. 367; 9 Johns. 396: Bamardiston v. Soame, 6 State 
Trials, 1063-1099; Kandall v. Brigham, 7 Wall. 523. 

* Pratt V. Gardner, 2 Cush. 68. 

* Blood V. Sayer, 17 Vt. 609; Cable v. Cooper, 15 Johns. 157; Houlten v. Smith, 
U Ad. & B. N. S. 841; Pease t;. Clayton, 1 Best. & S. 658. 



at least it depends upon matters of fact, should be exempt from 
liability, and that the protection afforded extends to all cases 
except where he acts fraudulently, corruptly, and maliciously.^ 
The author believes, however, that in a clear case of want of 
jurisdiction, as if a court having purely probate jurisdiction 
should undertake to exercise jurisdiction over a case of felony, 
the judge would be liable in damages.^ But with these provisos 
it is a rule of great antiquity that no action will lie against a judge 
of record for any act done by him in the exercise of his judicial 
functions, provided, though it be done through mistake, yet it 
is within his jurisdiction. The rule that a judicial officer can- 
not be sued for an adjudication according to the best of his 
judgment upon a matter within his jurisdiction, and also the 
rule that a matter of fact so adjudicated by him cannot be put 
in issue in an action ao^ainst him, have been uniformlv main- 
tained.^ This is for the public welfare, to secure the independ- 
ence of the judges, and in order that the course of justice 
should not be impeded by constant restraints and apprehensions 
on the part of those called upon to administer it.* And the 
rule has been extended to persons acting to some extent ju- 
dicially, but with a more limited authority.^ If a charge be 
of an offense over which a magistrate has jurisdiction, if it be 
true in fact, the jurisdiction cannot be made to depend upon the 
truth or falsehood of the facts, or upon the evidence being suf- 
ficient or insufficient to establish the corpus delicti under inves- 

1 Bevard v. Hoffman, 18 Md. 479; BuUett v. Clemant, 16 B. Mon. 193; Gregory 
V. Brown, 4 Bibb, 28; Morgan v. Dudley, 18 B. Mon. 693; Morgan v. Haghes, 2 
T. R. 225. 

2 Ackerly v. Paikinson, 3 Maule & S. 411; Calder v. Halkett, 3 Moore, P. C. C. 

8 Smith V. Boucher, Cas. Temp. Hardw. 69; Calder v, Halkett, 3 Moore P. C. 
C. 28; Scott V. Stansfield, Law R. 3 Com. P. 220; Taafe v. Downes, Law R. 3 Com. 
P. 36; Kemp v. Neville, 10 Com. B. N. S. 549; Wildes t;. Russell, Law R. 1 Com. 
P. 730; Yates v. Lansing, 5 Johns. 291; 9 Ibid. 396; Broom's Leg. Max. *86; Oar- 
nett V. Ferrand, 6 Barn. & C. 626. 

♦ Dicas i;. Lord Brougham, 6 Car. & P. 249; Kemp v. Neville, 10 Com. B. N. 8. 
523; Tinsley v. Nassau, Moody & M. 52; Johnstone v. Sutton, 1 T. R. 513; 1 
Ld. Raym. 468; Ackerley v. Parkinson, 3 Moore & S. 411; Beaurain r. Scott, 3 
Camp. 388; Wingate v. Waite, 6 Mees. & W. 739; Hamilton v. Anderson, 3 Macq. 
App. Cas. 363. 

« Holroyd v. Breare, 2 Barn. & Aid. 473; Bradley v. Carr, 3 Scott N. R. 521; 
Pitcher v. King, 9 Ad. & E. 288: Carratt v. Morley, 1 Q. B. 18; Morris v. Park- 
inson, 1 Cromp. M. &' R. 163; Pike r. Carter, 3 Bing. 78; Brown v. Copley, 8 
Scott N. R. 630: Lowther v. Radnor, 8 East, 113. 


tigation.^ When authority is given by statute to justices or 
magistrates, and they appear to have acted within the jurisdic- 
tion so given, and complied with all the provisions of the statute, 
their conviction drawn up in due form, and remaining in force, 
is conclusive evidence in their favor in any action which may be 
brought against them founded on their official proceedings.^ 
Where, however, the law imposes an absolute duty upon an in- 
dividual, injuries arising from his neglect or refusal to perform 
it have been the subjects of actions, and have been held to fall 
within different principles.^ 

As neither judges nor judicial officers are, as a rule, liable to 
answer personally for their judicial acts, an action will not lie, 
therefore, against a judicial officer for an erroneous judgment 
or wrongful commitment ; nor usually for any act done in a ju- 
dicial capacity.^ An action will not lie against a grand juror 
for wrongfully presenting and finding an indictment; nor against 
a petty juror for a wrong verdict ; nor a coroner, who is a judi- 
cial officer, for any matter done by him in the exercise of his 
judicial functions. If, therefore, he desires to hold a private in- 
quest, he may conduct it with closed doors ; and a person may 
be even turned out if he refuses to go, and the coroner cannot 
be held liable as for an assault.^ The rule holds good, gener- 
ally, as to arbitrators.^ They are not responsible in damages 
for their mistakes or omissions, or for negligence or carelessness 
in the discharge of their duties ; but if they abuse the office of 

1 Cave V. Mountain, 1 Man. & G. 257; Ayrton v. Abbott, U Q. B. 1. See Fer- 
giiAon t;. Klnnoul, 9 Clark & F. 261; Reg. v. Bolton, 1 Q. B. 66. 

s Basten v. Carew, 5 Barn. & C. 652; 5 Dowl. & R. 558; Baylis v. Strickland, 1 
Scott N. R. 540; Stamp v. Sweatland, 8 Q. B. 13; Painter v. Company, 3 Ad. & E. 
433; Femley v. Worthlngton, 1 Scott K. R. 432; Webb v. Bachelour, Vent. 273; 
Tarry v. Newman, 15 Mees. & W. 645. 

> Ferguson v. Kinnoul, 9 Clark & F. 251; Barry v. Amaud, 10 Ad. & £. 646; 
McKenna v. Pape, 1 H. L. Cas. 7. 

« Bradley v. Fisher, 13 Wall. 335; Jordan v. Hanson, 49 N. H. 199; Hammond 
r. Howell, 1 Mod. 184; 2 Mod. 219; Yates v. Lansing, 5 Johns. 282; 9 Johns. 395; 
Londegan v. Hammer, 30 Iowa, 608; Bailey v, Wiggins, 5 Harris, 462; Pratt v. 
Gardner, 2 Cush. 68; Hetfield v. Towsley, 3 Iowa, 584; Downing v. Herrick, 47 
Me. 462; Deal v. Harris, 8 Md. 40; Brodie v. Rutledge, 2 Bay, 69; Tyler v. Alford, 
38 Me. 530; Ambler v. Church, 1 Root, 211; Hamilton v. Williams, 26 Ala. 527; 
Adkins v. Brewer, 3 Cowen, 206; Yanderheyden v. Young, 11 Johns. 160; Ely t;. 
Thompson, 3 Marsh. 76; Little v. Moore, 1 South. 74. 

SGarnett v. Ferrand, 6 Bam. & C. 611; State v. Copp, 15 N. H. 212; Kemp v, 
Neville, 10 Com. B. N.* S. 623; Hunter v. Mathis, 40Ind. 366. 

•Morris v. Reynolds, 2 Ld.Raym. 867; Anon. 3 Atk. 644. 

D. A. I.— 14. 


judge, and act fraudulently and corruptly, they may be held an- 
swerable.^ The general rule as to the exemption of judicial 
officers from liability in civil suits applies to inferior as well as 
the higher officers as long as thoy act in a judicial capacity.^ It 
extends to members of municipal boards in passing upon 
claims ; ^ to assessors while fixing the valuation of property ; ^ 
to commissioners of highways in passing upon exemptions from 
road taxes,'^ and in laying out, altering, or discontinuing high- 
ways, when vested with authority to so act ; ® and to appraisers 
of damages when property is taken in pursuance of the right of 
eminent domainJ As to officers exercising what are called 
quasi judicial functions, there are many cases which hold that 
they are liable if they act maliciously to the prejudice of others.^ 
Members of boards of education have been held liable for the 
dismissal of teachers when there was malice and no justifiable 
reason for their conduct.^ But a school committee has been 
held not liable for expelling children from school if the expul- 
sion was done in good faith. *^ With regard to election ofiicers 
the authorities are not agreed. Some cases place these function- 
aries upon the footing of qitasi judicial officers, and protect 
them when acting in good faith, but not when acting maliciously 
in denying a person's right to vote. If the citizen has had a 
fair and honest exercise of judgment by the officer, it is said 

1 Wills V. Maocarmick, 2 Wils. 148; Tozer v. Child, 7 £1. & B. 383; Pappa v. 
Ros6, L. R. 7 Com. P. 32, 625; Hopper, In re, L. R. 2 Q. B. 367. 

* A large number of authorities might be cited to sustain this principle. The 
following, however, are deemed sufficient: Raymond t;. BoUes, 11 Cush. 310; 
Floyd V. Barker, 12 Co. 20; Downing t;. Herriok, 47 Me. 462; liondegan v. Ham- 
mer, 30 Iowa, 606; Bumham v, Stevens, 33 K. H. 247; Jordan r. Hanson, 49 N. 
H. 199; Walker v, Hallack, 32 Ind. 239; Scheettgen v. Wilson, 48 Miss. 253. 

« Wall V. Trumbull, 16 Mich. 228. 

* Auditor v. Atchison &c. 6 Kansas, 600; Steele v, Dunham, 26 Wis. 393; 
Weaver v. Derendorf , 3 Denio, 117. 

'Harrington v. Commissioners, 2 McCord, 400; Freeman v, Cornwall, 10 
Johns. 470. 

Sage V. Laurain, 19 Mich. 137. But see Turnpike Road v. Champney, 2 K. H. 
199; Stone v. Augusta, 48 Me. 127. 

7 Van Steenbeigh v. Bigelow, 3 Wend. 42. 

^ Gregory v. Brooks, 37 Conn. 365; Baker v. State, 27 Ind. 485; BUlings v. Laf- 
^erty, 81 111. 318; lilienthal t;. Campbell, 22 La. An. 600; HoggaU v. Bigley, 6 
Humph. 236; Reed v. Conway, 20 Mo. 22; Tompkins v. Sands, 8 Wend. 462. 

ft Bennett v. Fuhner, 48 Fa. 157. 

10 Donahoe v. Richards, 38 Me. 379; Stephenson v. Hall, 14 Barb. 222; BUfWiM 
V. Southard, 17 Ohio 402; Feiti«er v. Tyler^ 48 Vt. 444; 21 Am. R. 13B. 


that this is all the law gives him ; and although the judgment 
may be erroneous, and the party injured, it is damnum absqtie 
injuria^ and no action lies.^ The rule, however, that the oflScer 
is liable in any event in case of error, is supported by plentiful 
authority and cogent reasoning.^ This rule is based upon 
grounds of public policy, and the necessity of preserving the 
freedom and the rights of the ballot. If judicial officers act 
clearly outside of their authority, and a party is injured, they 
may be liable.^ In many cases, judges have been held liable if 
their acts were done willfully, fraudulently, corruptly, or mali- 
ciously.* But in others, impeachment is considered the only 
remedy.* A judge is not answerable for slander spoken by him 
in the exercise of his judicial functions in reference to a matter 
before him, even if the words be spoken maliciously, and with- 
out probable cause, and be irrelevant and not bona fide in the 
discharge of his duty as a judge ; but if he makes slanderous 
attacks upon private character in respect of matters not before 
him, and into which he has no right to inquire, he may be respon- 
sible like a private individual.^ This immunity from pecuniary 
responsibility is given to judges not so much for their own sake, 
but, as Lord Tenterden has expressed it, for the sake of the 
public, and the advancement of justice, " that, being free ffom 
actions, they may be free in thought and independent in judg- 
ment, as all who are to administer justice ought to be." 

§ 110. Responsibility of tho judiciary in civil actions 
for acts dono judicially, as striking from the rolls. — In 

Bradley v. Fisher, in the Supreme Court of the United States,^ 

1 Bevard v. Hoffman, 18 Md. 479; Friend v. Hamill, 34 Md. 298; Goetchens v. 
Mattliewson, 61 N. Y. 420; Pike v. Magoun, 44 Mo. 492, and numerous cases cited. 

> Lincoln v. Hapgood, 11 Mass. 350; Jeifries v, Aukeny, 11 Ohio, 372; Monroe 
V. CoUins, 17 Ohio K. S. 665; Keith v. Howard, 24 Pick. 292, and cases cited; 
Ashby V. White, Ld. Raym. 938; 1 Salk. 19; 8 State Trials. 89. 

< Craig V. Burnett, 32 Ala. 728; Bumham v. Stevans, 33 N. H. 247; Doswell v. 
Impey, 1 Bam. & C. 109; Gahan r. Lafltte, 5 Moore P. P. C. 382; Blood v. Sayre, 
17 Vt. 609; Adkins v. Brewer, 3 Cow. 206; Clarke v. Spicer, 6 Kan. 440. 

^Bevard r. Hoffman, 18 Md. 479; State v. Campbell, 2 Tyler, 177; Morgan v. 
Dudley, 18 B. Mon. 693; Gregory v. Brown, 4 Bibb, 28; Bullitt v. Clement, 16 
B. Mon. 193. 

& Rochester White Lead Co. v. Rochester, 3 N. T. 463. See § 110. 

•Scott V. Stansiield, Law R. 3 £z. 220; Lewis v. Lery, 27 Law. J. Q. B. 289; 
McGregor v, Thwaites, 3 Barn. & C. 24. 

•Bradley v. Fisher, 13 WaU. 335; Ex parte Bradley, 7 Wall. 364. 


it appeared that the plaintiff was a member of the bar of the su- 
preme court of the District of Columbia, and the defendant was 
one of the justices of that court. The plaintiff had been one of 
the counsel for t)\e defense in a criminal cause pending before the 
defendant as judge, and immediately upon the discharge of the 
jury in the cause, the court, held by defendant, directed an order 
to be entered on its records striking the name of the plaintiff from 
the roll of attorneys practicing in that court. The order was 
accompanied by a recital, that during the progress of the trial, 
immediately after the court had taken a recess for the day, as 
the presiding judge was descending from the bench, he had 
been accosted in a rude and insulting manner by the plaintiff, 
charging him with having offered the plaintiff a series of insults 
from the bench from the commencement of the trial ; that the 
judge had then disclaimed any intention of passing any insult 
whatever, and had assured the plaintiff that he entertained for 
him no other feelings than those of respect ; but that the plaint- 
iff, so far from accepting this explanation or disclaimer, had 
threatened the judge with personal chastisement. The action 
Was for damages for the conduct of the defendant, whereby the 
plaintiff was deprived of his right to practice as an attorney in 
that court. 

Several points were raised and discussed, based upon the con- 
stitution of the court, and of a technical character ; but it was 
also distinctly set up, by special plea, that the order was made 
in the lawful exercise and performance of defendant's authority 
and duty as presiding justice, for the official misconduct of the 
plaintiff as one of its attorneys, and in the' presence of the court. 
In other words, it set up that the order was a judicial act ; and it 
was held that, if such were the character of the act and the juris- 
diction of the court, the defendant could not be subjected to 
responsibility for it in a civil action, however erroneous the act 
might have been, or however injurious in its consequences it 
proved to the plaintiff. " For," said the court,^ " it is a general 
principle of the highest importance to the proper administration 
of justice, that a judicial officer, in exercising the authority vested 
in him, shall be free to act upon his own convictions, without 
apprehension of personal consequences to himself. Liability to 

1 Per Field, J. 

« . 


answer to every one who might feel himself aggrieved by the 
action of the judge, would be inconsistent with the possession of 
this freedom, and would destroy that independence without which 
no judiciary can be either respectable or useful. As observed by 
a distinguished English judge, it would establish the weakness of 
judicial authority in a degrading responsibility.^ 

"The principle, therefore, which exempts judges of courts of 
superior or general authority from liability in a civil action for 
acts done by them in the exercise of their judicial functions, 
obtains in all countries where there is any well-ordered system 
of jurisprudence. It has been the settled doctrine of the Eng- 
lish courts for many centuries, and has never been denied, that 
we are aware of, in the courts of this country. It has, as 
Chancellor Kent observes, * a deep root in the common law.'^ 

" Nor can this exemption of the judges from civil liability be 
affected by the motives with which their judicial acts are per- 
formed. The purity of their motives cannot in this way be the 
subject of judicial inquiry. This was adjudged in the case of 
Floyd V. Barker,^ reported by Coke in 1608, where it was laid 
down that the judges of the realm could not be drawn in ques- 
tion for any supposed corruption, impeaching the verity of their 
records, except before the king himself ; and it was observed 
that if they were required to answer otherwise it would tend to 
the scandal and subversion of all justice, and those who are the 
most sincere would not be free from continual calumniations. 

" The truth of this latter observation is manifest to all per- 
sons having much experience with judicial proceedings in the 
superior courts. Controversies, involving not merely great pe- 
cuniary interests, but the liberty and character of the parties, 
and consequently exciting the deepest feelings, are being con- 
stantly determined in those courts, in v/hich there is great con- 
flict in the evidence, and great doubt as to the law which should 
govern their decision. It is this class of cases which imposes 
upon the judge the severest labor, and often creates in his mind 
a painful sense of responsibility. Yet it is precisely in this 
class of cases that the losing party feels most keenly the decis- 


1 Justice Mayne in Taafe v. Downes, 3 Moore P. C. C. 41n. 
3 Yates V. Lansing, 5 Johns. 291. 
s 12 Coke, 25. 


ion against him, and most readily accepts anything but the 
soundness of the decision in* explanation of the action of the 
judge. * * J£ eivil actions could be maintained in such cases 
against the judge because the losing party should see fit to al- 
lege in his complaint that the acts of the judge were done with 
partiality, or maliciously, or corruptly, the protection essential 
to judicial independence would be entirely swept away. Few 
persons sufficiently irritated to institute an action against. a judge 
for his judicial acts would hesitate to ascribe any character to 
the acts which would be essential to the maintenance of the 

" If, upon such allegations, a judge could be compelled to an- 
swer in a civil action for his judicial acts, not only would his 
office be degraded and his usefulness destroyed, but he would be 
subjected for his protection to the necessity of preserving a 
complete record of all the evidence produced before him in 
every litigated case, and of the authorities cited and arguments 
presented, in order that he might be able to show to the judge 
before whom he might be summoned by the losing party — ^and 
that judge perhaps one of an inferior jurisdiction — that he had 
decided as he did with judicial integrity ; and the second judge 
would be subjected to a similar burden, as he in his turn might 
also be held answerable by the losing party." ^ 

Nor, according to come cases, will it avail that the act be 
alleged to bq done maliciously and corruptly.^ The judges of 
the superior courts in America are said to be only responsible to 
the people, or the authorities constituted by the pSople, from 
whom they receive their commissions, for the manner in which 
they discharge th^ trusts of their office. If, in the exercise of 
the powers with which they are clothed as ministers of justice, 
they act with partiality, or maliciously, or corruptly, or arbitra- 
rily, or oppressively, they may be called to an account by im- 
peachment, and suspended or removed from office. 

1 Bradley v. Fisher, 13 Wall. 335, per Field, J. ; Pratt t;. Gardner, 2 Cush. 6S, 
per Shaw, C. J.; Fray v. Blackburn, 3 Bedt & Smith, 576; Scott v. Stansfleld, 3 
Law R. Ex. 220; Bandall v. Brigham, 7 Wall. 523; Rochester &c. v. Rochester, 3 
N. Y. 463. 

^IbitL See cases contra, cited in preceding section. 


§ HI. Ministorial ofELcers. — ^Where the court has juris- 
diction of the subject-matter, the officer is not generally bound 
to look into the proceedings under which it was issued. If the 
process is issued by a court having jurisdiction, and is regular 
on its face, the officer is usually protected in following ks 
requirements.^ If the subject-matter is within the jurisdiction 
of the court or officer issuing the process, and the want of juris- 
diction concerns only the person or place, the executive officer 
cannot be required to determine t*he question of jurisdiction, and 
will be protected in the execution of the process if it be regular 
on its face, and no want of jurisdiction appears.^ In such cases 
the damage resulting to the injured party is damnum absque 
injuria as against the officer. But want of jurisdiction of the 
subject-matter is held to deprive the officer of protection from 
the process.^ In cases of liability on civil process the presump- 
tion is in favor of the officer that he has done his duty.^ Where 
there is a discretionary authority vested in a public officer, if he 
acts within its scope he is not answerable for damages at all un- 
less he acts maliciously and with intent to injure.^ ^^ Where 
process is served by mistake on a wrong person, and all the pro- 
ceedings in the action are taken against him, the defendant so 
wrongfully sued will undoubtedly have a good defense to the 
action, and will consequently recover his costs ; but if it be asked 
what further remedy he has for the inconvenience and trouble 
he has been put to, the answer is that in point of law, if the 
proceedings have been adopted purely through mistake, though 
injury may have resulted to him, it is damnum absque injuria^ 
and no action will lie. Indeed, every defendant against whom 
an action is unnecessarily brought, experiences some injury or 
inconvenience beyond what the costs will compensate him for." ^ 

1 Gray v. Kimbal, 42 Me. 299; Woods v. Davis, 34 N. H. 328; Ortman v. Green- 
man, 4 Mich. 291; Warner v. Shed, 10 Johns. 138; Dynes v. Hoover, 20 How. 65. 

3 Smith V. Shaw, 12 Johns. 267; Barker v. Green, 2 Biofif. 317; Champaign Bank 
V. Smith, 7 Ohio St. 42; Squibb v. Hole, 2 Mod. 29; Higglnson v. Martin, 2 Mod. 
196; Camp v. Mosely, 2 Fla. 171. 

* Stephens v. Wilkins, 6 Barr. 260; Pierce v. Atwood, 13 Mass. 324; Hull v. 
BlaisdeU, 1 Scam. 332. 

4 State V. Freemi^, 8 Iowa, 428. 

* Burton v. Fulton, 49 Pa. 161. 

Broom's Leg. Max. *198, citing Da vies v. Jenkins, 11 Mees. & W. 766; Cot- 
terell v. Jones, 11 Com. B. 713; Hob. 266; Ewart v. Jones, 14 Mees. & W. 774; 
Yearsley v, Heane, 14 Mees. & W. 322 ; Daniels v. Fielding, 16 Mees. & W. 200; De 
Medina v. Grove, 10 Q. B. 162 ; Churchhill v. Siggers, 3 £1 . & B. 929, and other cases. 


In the following cases the officer serving process has been held 
justified in his acts under it. Where the subject-matter was 
within the jurisdiction of the court, and the want of jurisdic- 
tion was as to person or place, the officer was held excused un- 
less the want of jurisdiction appeared on the process.^ Where 
the warrant was in legal form, by a court having jurisdiction, 
and directed him to arrest a party, yet the proceedings of the 
court in issuing the warrant were erroneous.^ Where a sherifE 
made a levy upon property to which a claim was interposed, and 
upon the trial the plaintiff in execution was nonsuited, and the 
property directed to be restored to the claimant, which judgment 
was afterward reversed by the supreme court, and the sheriff 
was afterward proceeded against by motion for failing to make 
the money, he was held protected by the erroneous judgment in 
delivering up the property.* When a precept is lawful on its 
face and in form, though voidable for irregularity or mistake, 
the officer has been held to be protected by it until reversed or 
set aside.* Where process was issued out of one court, with the 
seal of another attached to it, and Was therefore erroneous, and 
as if it had no seal, but the defect could be remedied, the process 
not being absolutely void, but only voidable, the officer was pro- 
tected.^ So, a writ which was once legally served, and then 
altered by inserting a different date and return-day without de- 
fendant's consent, justified the officer in again making service of 
it when delivered to him for that purpose subsequently to the 
alteration.^ An execution in the name of .'^ A B, use of officers 
of court," gave protection to the officer levying when issued by 
a court of competent jurisdiction, the words '^ use of officers of 
court " being treated as surplusage.^ A constable justified 
under a 'writ of attachment, notwithstanding the direction of the 
writ did not conform to an existing statute, but was according 
to a previous one.^ An officer executing the process of a court of 

1 Champaign &c. v. Smith, 7 Ohio N. S. 42; Smith v. 8haw, 12 Johns. 257. 
< Donahue v. Shed, 8 Met. 326. 

* Smith V. LeaTitto, 10 Ala. 92. i 
« State V. McNally, 34 Me. 210; Parker v. Smith, 1 Gilm. 411; Wilton v. Butler, i 

34 Me. 431; Kenniston v. Little, 10 Fost. 318. 
B Dominick v. Backer, 3 Barb. 17. 

• Stoddard v. Tarbell, 20 Vt. 321. 

1 McElhany v. Flynn, 23 Ala. 819. , 

8 Stewart v. Martin, 16 Yt. 397. 


competent jurisdiction was held not liable though the judgment 
was paid,^ and this although he may be shown a receipt in set- 
tlement of the judgment. He is not bound to investigate its 
sufficiency, validity, or genuineness.* So, if the consideration 
of the judgment had totally failed.^ Where the first name is 
erroneous in the writ, it does not make the officer liable if the 
right defendant be served ; so with mistakes in the writ as to 
places of residence.* Except in cases of willful neglect, when 
the plaintiff has himself been in fault, it frequently destroys the 
liability of the officer ; especially where the plaintiff has by in- 
terference prevented the officer from discharging his duty.^ So, 
where the plaintiff or his agent instructs the sheriff to make a 
return which proves insufficient;® or where the plaintiff is 
present, and acquiesces in stated terms of sale ; ^ or where the 
plaintiff makes mistakes in amounts.^ An officer may also 
justify his neglect to serve an execution by showing title in a 
third person, or that the judgment is fraudulent, and that he 
holds another process in favor of the true judgment-creditor.* 
He may show that goods to be attached did not belong to the 
judgment;debtor,^^ or that prior attachments were on which cov- 
ered the whole possible value of the goods.^^ As to returning an 
execution, a sheriff who had lost or mislaid it, or mailed it to 
the office from which it came, and after diligent search could 
not find it, was held not liable.^ And where a sheriff misplaced 
an execution, and failed to return it in the proper time, but it 
was replevied by good parties, this was considered a defense.^' 

1 Wilmarth v. Burt, 7 Met. 257; Mason v. Vance, 1 Sneed, 178. 

2 Twitchell v. Shaw, 10 Cush. 46. 

' Arnold v. Commonwealth, 8 B. Mon. 109. 

** Trail V. Howland, 10 Cush. 109; Smith v. Bowker, 1 Mass. 76. But see old 
cases, contrcL, Bex v. Sheriff, 1 Marsh. 75; Shadgett v. Glipson, 8 East, 328; Price 
V. Harwood, 3 Gamp. 108; Scandover v. Warne, 2 Camp. 270; Cole v. Hindson, 6 
Term Rep. 234. 

* Stryker v. Merseles, 4 Zab. 542. 

< Billingsby v. Rankin, 2 Swan, 82; Robinson v. Harrison, 7 Humph. 189. 

' Bottoms V. Mlthyin, 26 Ga. 481. 

8 Pftge V. Belt, 17 Miss. 263. 

^ Pierce v. Jackson, 6 Mass. 242; Dobbs v. Justices, 17 6a. 624; Clark v. Fox- 
croft, 6 Greenl. 296. 

1^ Canada v. South wick, 16 Pick. 556. 

11 Commercial Bank v. Wilkius, 9 Greenl. 28; Jordan v. Gallup, 16 Conn. 536. 

^ Mitcheson v. Foster, 3 Met. (Ky.) 324. 

w Shippen r. Curry, 3 Met. (Ky.) 184. 


Where a deputy who had returned a writ was asked by the 
plaintiff some time afterwards whether the return was in due 
form of law, and with intent to deceive replied that it was, and 
the plaintiff was thereby damnified, it was held there was no 
remedy against him, as the question called for his opinion as to 
a matter of law, and besides, the plaintiff had himself the means 
of acquiring correct information.^ If the levy and judgment is 
fraudulent and void, this is a defense to an action for neglect to 
return the execution, provided the oflScer holds the true process.* 
A sheriff is not liable for an insufficient return if his making It 
was caused by statements of plaintiff or his agent,^ and it is a 
good defense to an action for a false return that the plaintiff 
assented to it with full notice of the f acts.^ 

The usual requisite, as laid down in the books, is that process 
must be " fair upon its face," in order to protect an officer in 
serving it — ^that is to say, it should be apparently lawful. If 
the tribunal issuing it has authority of law to issue process of 
that nature, and it is legal in form, and there is nothing to notify 
the officer that it is issued without authority, it may be said to 
be ^' fair upon its face." It is not necessary that it should be 
absolutely according to the best practice, nor according to the 
best models.** Since the case of Savacool v. Boughton,® it would 
appear that the distinction between process issuing from courts 
of general jurisdiction, and that issuing from inferior tribunals, 
is not generally recognized, but still, recitals may be sufficient 
in the one case and not in the other. The distinction drawn by 

1 Starr v. Bennet, 5 Hill, 303. 

a Bradley v. Wyndham, 1 Wils. 44; Clark v. Foxcroft, 6 Greenl. 296. 

8 Billingsby v. Rankin, 2 Swan, 82. 

« Stuart V. Whittaker, 2 Car. & P. 100; Smallcomb v. Cross, 1 Ld. Baym. 251; 
Holmes v. Clifton, 10 Ad. & E. 673. 

^ The authorities upon these propositions are so numerous that it seems use- 
less to attempt to cite them all. The folio win^c are some of the later cases con- 
taining extensive citations of earlier adjudications : Bird v. Perkins, 33 Mich. 
28; Erskine v. Hohnbach, 14 Wall. 613: Walden v. Dudley, 49 Mo. 419; McLean 
t\ Cook,. 23 Wis. 364; Orr v. Box, 22 Minn. 486; Glasgow v. Rowse, 43 Mo. 479; 
Lott V. Hubbard, 44 Ala. 593; Neth v. Crofut, 30 Conn. 580; Hill t). Figley, 25 
in. 156; Noland v. Busby, 28 Ind. 154; Brainard v. Head, 15 La. An. 489; Nowell 
V. Tripp, 61 Me. 426; Seekins v. Goodale, 61 Me. 400; Underwood v. Robinson, 
106 Mass. 296; Kelley v. Noyes, 43 K. H. 209; Savacool v. Boughton, 5 Wend. 
171; Cunningham v. Mitchell, 67 Pa. 78; Burton v. Fulton, 49 Pa. 151; Gore v. 
Martin, 66 N. C. 371; Slate t?. Lutz, 65 N. C. 503; Webber v. Gay, 24 Wend. 486. 

« 5 Wend. 170. 


some of the cases was that in the case of inferior tribunals the 
officer must take notice of everything that appeared and every- 
thing that did not appear in the proceedings leading to the issu- 
ance of the process. But the presumption is in favor of courts 
of general jurisdiction, while in the case of inferior courts enough 
must appear upon the face of the proceedings to show authority, 
even if the officer is not required to go behind them. 

Ministerial Jiinctions imposed upon judicial oficers. — ^Minis- 
terial functions may be imposed upon judicial officers, and then 
their duties are not discretionary, but imperative.^ In cases of 
habeas corpus^ it is usually incumbent upon the judge, if the pe- 
tition makes out a prima fade case of illegal confinement, to is- 
sue the writ forthwith. He may be responsible in damages if 
he fails to obey the law. Justices of the peace are often in- 
vested with ministerial functions, and they are liable, if they re- 
fuse to issue a summons to a person who lawfully demands it, 
or an execution on a judgment they have rendered,^ or to enter 
up a judgment rendered, and generally if they refuse or neglect 
to perform their ministerial duties,^ as to take security on issu- 
ing a writ of replevin, or security on appeal, or issuing an at- 
tachment without the statutory requisites.^ 

§ II4S. Acts of 8harifBi» etc. — In Semayne's Case (5 Co. 
91} it was decided that ^* when any house is recovered by any 
real action, or by- ejectment, the sheriff may break the house 
and deliver the seizin or possession to the demandant or plaint- 
iff," for the words of the writ are habere facias seisinam or 
possessionem, and after judgment, it is not the house, in right 
and judgment of law, of the tenant or defendant. That in all 
oases where the king is party, the sheriff, if the doors be not 
open, may break the party's house either to arrest him or to do 
other execution of the king's process ; if otherwise, he cannot 
enter. But before he breaks he ought to signify the cause of 

^Feigiuon v. Kinnonl, 9 Clark & F. 251. 

SGayior v. Hunt, 23 Ohio. (N. 8.) 255; Place v. Taylor. 22 Ohio, (N. S.) 317; 
WilBon 17. New York, 1 Denio, 595; Way v, Townsend. 4 Allen, 114; Nixon c. 
Hill, 2 Allen, 215; Bochester Company v. Rochester. 3 N. Y. 463. 

•Faircfaild v. Keith, 29 Ohio, (N. 8.) 156; Peters ©. Land, 5 Blackf. 12. 

4 Smith V. Tiawl, I Boot, 165 ; Tompkins r. Sands, 8 Wend. 462; Vosbnrgh v. 
Welch, 11 Johns. 174. See Pangbnm r. Bamsay, 11 Johns. 141. 


his coming, and to make request to open the doors. That in all 
cases where the door is open, the sheriff may enter the house 
and do execution, at the suit of any subject, either of the body 
or the goods ; but that it is not lawful for the sheriff, (after re- 
quest made to open the door and denial made) at the suit of a 
common person, to break the defendant's house, if the door be 
not opened, to execute any process at the suit of any subject. 
That the house of any one is not a castle or privilege but for 
himself, and shall not extend to protect any person who flies to 
his house, or the goods of any other which are brought and con- 
veyed into his house to prevent a lawful execution, and to es- 
cape the ordinary process of law ; for the privilege of his house 
extends only to him and his family, and to his own proper goods, 
or to those which are lawfully and without fraud and covin there ; 
and therefore in such cases, after denial or request made, the 
sheriff may break the house." ^ A barn or outhouse, uncon- 
nected with the dwelling-house, is not a man's castle, and the 
sheriff may therefore break open the door of such a building in 
order to levy an execution.^ If aa order has been made in a 
cause over which the court has a general jurisdiction, a minis- 
terial oflScer, who receives the warrant or order from the clerk 
to execute, and does not know that it was issued without author- 
ity on the part of the court, is not responsible for his acts under 
it ; and the clerk of the court, exercising merely ministerial 
functions, and so long as he does exercise them and not judicial 
ones, is not responsible for acts done under the orders signed 
and issued by him, unless there is a total want of jurisdiction on 
the part of the judge.^ 

If an officer peaceably obtains entrance through the outer 
door, and before he can make an actual arrest is forcibly ex- 
pelled from the house, and the outer door is fastened against 
him, he may then break open the outer door and make the arrest, 
and when he is once in the house lawfully he is justified in 
breaking open the outer door to gain egress if it be locked 

^Semayne's Case, 6 Co. 91; 1 Smith's L. C. 88. See Jacobs v. Measurers, 13 
Gray, 74. 

* Benton v. Brown, 1 Sid. 186; FuUman v. Steams, 80 Vt. 443. 

'Andrews v. Morris, 1 Q. B. 3; Dews v. Biley, 11 Com. B. 434; Dyne v. Hoover, 
20 How. 65; Brown v. Mason, 40 Vt. 157; Woods v. Davis, 34 N. H. 328; Shaw v. 
Davis, 65 Barb. 389; M'Lean v. Cook, 23 Wis. 364; Chase v. Ingalls, 97 Mass. 524. 


against him.^ If, after the officer has effected an arrest, the 
prisoner escape into a house, the officer may break into the 
house to retake him, whether the house belong to the debtor or a 
stranger, provided he has given notice of his object, and has 
demanded and been refused admission.^ If the- sheriff or his 
officer gain peaceable entrance to a house at the outer door, he 
may break open an inner door either to seize the person or the 
goods of the owner, or of a lodger therein, and having entered 
in this way at the outer door, he need not demand that the inner 
doors be opened before he breaks them, in order to seize goods 
under a fi^fa? If a sheriff acts under a genuine writ, both he 
and his officers acting under him are protected by it, although it 
be on the face of it merely irregular, because they are bound 
to execute it, and a fortvyri^ a writ regular upon its face, and 
issued by a court of competent jurisdiction, is always a protec- 
tion to the officer who serves it.* And an officer is protected by 
process regular upon its face, although at the time he executed 
it he knew of facts making it void for want of jurisdiction.^ 
But where process is void upon its face, as when issued by an 
officer not authorized by law to issue such process, the process 
is no justification to the officer executing it. A warrant, for in- 
stance, issued by a justice of the peace without authority, is no 

1 PiiRh V. Griffith, 7 Ad. & E. 827; Aga Kurboolie Mahomed, 4 Moore P. C. C. 

> Anon. Lofft. 390; 7 Mod. 8. See Sandon v. Jenris, £1. B. & £. 930; Lloyd v. 
SandilandB, 8 Taunt. 250. 

8 Hutchinson v. Birch, 4 Taunt. 618; Lloyd v. Sandilands^ 2 Moore, 210; Lee t?. 
Gansell, 1 Cowp. 1; Lofift. 374. 

^ Countess of Rutland's Case, 6 Rep. 54a; Cotes v. Michill, 3 Lev. 20; Slomer 
t?. People, 25 III. 70; Beatty r. Perkins, 6 Wend. 382; Churchhill «. Churchhill, 12 
Vt. 661; Warner v, Shedd, 10 Johns. 138; Donahoe v. Shed, 8 Met. 326; Fortner 
V. Flama^an, 3 Port. 257; Milbam v. Oilman, 11 Mo. 64; State v. McNall, 34 Me. 
210; Wilton M. Co. v. Butler, 34 Me. 431; Woods v. Davis, 34 N. H. 328; BilUngs 
V, Russell, 23 Pa. 189; Twitchell v. Shaw, 10 Cush. 46; Woods v. Davis, 34 N. H. 
328; Neth v. Crofut, 30 Conn. 580; Bogert v. Phelps, 14 Wis. 88; McLean v. Cook, 
23 Wis. 364, 

^People V. Warren, 5 Hill, 440; Brainard v. Head, 15 La. An. 489; Hart v. 
Dubois, 20 Wend. 236; Wall u. Trumbull, 16 Mich. 228; Bird r. Perkins, 33 Mich. 
28; Webber «. Gay, 24 Wend. 485; Wilmarth v. Burt, 7 Met. 257; Watson v. 
Watson, 9 Conn. 140; Belk r. Broadbent, 3 T. R. 183; Richards v. Nye, 5 Oreg. 382. 
But see Grace v. Mitchell, 31 Wis. 533; McDonald t*. Wilkie, 13 HI. 22; Leach- 
man V. Dougherty, 81 Dl. 324. But it is also held that a sheriff is not liable who 
suffers a prisoner arrested on a warrant to escape, though the warrant is fair on 
its face, if it issued without the preliminary showing required by statute. 
(Housh V. People, 75 lU. 487.) . 


protection to the officer executing it. And an execution issued 
by a magistrate against a defendant who has not been sum- 
moned before him, is void, and no protection to the officer who 
levies it.^ 

§ 113. Public ofELcen. — Public officers, employed in the 
public departments, in the conduct and management of the pub- 
lic business of the country, are not responsible for the negligence 
and misconduct of those who act under them, although the sub- 
ordinate officers have been appointed by them. Thus in Eng- 
land, the Lords Commissioners of the Treasury, the Commis* 
' sioners of Customs and Excise, the Auditors of the Exchequer, 
etc., have never been held liable in damages for the negligence 
or misconduct of the inferior officers in their several departments. 
So with the Postmaster-General, and Queen's Officers ; but these 
officers and their subordinates are liable each for losses sustained 
by his own personal negligence in the discharge of his own par- 
ticular duty.^ And whenever duties of a judicial nature are im- 
posed upon a public officer, the due execution of which depends 
upon his own judgment, he is relieved from responsibility by 
action for the manner in which he performs them.^ If he is 
corrupt, he may be indicted or impeached ; but he cannot be 
prosecuted by individuals to obtain redress. The wrong, if any, 
is damnum absque injuria; but where ministerial duties are 
imposed upon officers whose functions are chiefly judicial, and 
the ministerial duty is violated, he may be held liable for this 
in a civil action.^ 

" If we take," says Cooley,^ " the case of legislative officers, 
their rightful exemption from liability is very plain. Let it be 
supposed that an individual has a just claim against the State 
which the legislature ought to allow, but neglects or refuses to 
allow. In such a case there may be a moral wrong, but there 

1 Gnerin v. Hunt, 8 Minn. 477; Stephens v, WUkins, 6 Barr. 200; Tobin v. 
Addison, 2 Strob. 3; Qorton v. Frizzel, 20 111. 191. 

> Lane v. Cotton, 1 Salk. 17; Sawyer v. Corse, 17 Gratt. 230; Bichmond v. Long, 
17 Gratt. 375; Whitfield v. Lord de Despenser, Cowp. 765; Barry v, Amand, 10 
Ad. & £. 070. 

*Donahoe r. Richards, 38 Me. 376; Kendall v. Stokes, 3 How. 97; Beed v, Oon- 
wfty, 20 Miss. 22. 

4 Rochester Company v. Bochester, 3 K. T. 468: Wilson v. Mayor, I Den. 099. 
dee Plummer v. Harbnt, 5 Clarke, 308; Tracy v. Swartwout, 10 Peters, 80. 

6 See Cooley on Torts, 376. 


can be no legal wrong. The legislature has full discretionary 
authority in all matters of legislation, and it is not consistent* 
with this that the members should be called to account at the 
suit of individuals for their acts and neglects. Discretionary 
power is, in its nature, independent ; to make those who wield it 
liable to be called to account by some other authority, is to take 
away discretion and destroy independence." This applies also to 
inferior legislative bodies, such as boards of supervisors, .county 
commissioners, city councils, etc.^ If these neglect or refuse to 
discharge their duties, the courts may compel them to act, but 
cannot compel them to reach particular conclusions, nor for. 
their failure to do so impose damages upon them, or upon the 
municipality they represent.^ But if some particular duty of a 
ministerial character is imposed upon a legislative body, in the 
performance of which its members are required to act severally, 
and no liberty of action and no discretion is allowed, there may 
be a private action for neglect. This is sometimes the case with 
subordinate boards, such as supervisors and commissioners, and 
if these ministerial duties are imposed for the benefit of indi- 
viduals, the members may be personally responsible for failure 
to perform their duties. 

Executive officers, — As to exemption from liability, very much 
the same general rule obtains with executive officers as with 
legislative. The governor of a State, for instance, may be 
Tested with a power to grant pardons and reprieves, to com- 
mand the militia^ to refuse his assent to laws, and to take the 
steps necessary for their proper enforcement ; but if he neglect 
any of these duties he cannot be made responsible to the suffer- 
ing party. In these instances the executive appears not to be 
responsible in the courts for the manner in which his duties are 
performed ; besides, another difficulty intervenes, viz., that he 
cannot be made responsible to private parties without subordi- 
nating the executive to the judicial department, and as each is 
independent within its sphere under the federal system, it would 
be inconsistent with the theory of republican government.^ 

1 Haker v. State, 27 Ind. 4S5 ; Morris v. People, 3 Den. 381 ; Bnell v, BsU, 20 
Iowa, 282; WUson v. New York, 1 Denio, 596; Freeport v. Marks, 59 Pa. 253. 
* WeUs V, Atlanta, 43 Ga. 67. See Morris v. People, 3 Denio, 381. 
'Cooley on Torts, 377. 


General rule of liability. — " If the duty which the official 
authority imposes upon an officer is a duty to the public, a fail- 
ure to perform it, or an inadequate or erroneous performance, 
must be a public not an individual injury, and must be redressed, 
if at all, in some form of public prosecution. On the other 
hand, if the duty is a duty to the individual, then a neglect to 
perform it, or to perform it properly, is an individual wrong, 
and may support an individual action for damages." ^ In the 
case, for instance, of officers appointed to lay out, alter, or dis- 
continue highways, they may decline to lay out a road which an 
individual desires, or they may discontinue one which is bene- 
ficial to him. There may be a damage to him, but it is damnum 
absque injuria. The duty performed or neglected was a public 
duty, and the officer owed no duty to him individually.^ The 
State may complain, but not individuals.^ The steps taken, 
however, must be in accordance with law, or the officer may be- 
come a trespasser. The same general principles apply to quar- 
antine officers, whose duty it is to prevent the spread of conta- 
gion.^ But there are offices created for the public benefit which, 
nevertheless, have duties devolved upon their incumbents which 
are principally duties to individuals, and the public is only in- 
cidentally benefited. Such an office is that of recorder of deeds. 
He is simply required to record for those who apply to him 
their individual conveyances, and upon request, and tender of 
fees, to give them abstracts or copies from the record. In such 
cases the right to a private action on breach of the duty is unques- 
tionable ; ^ and so a ministerial officer charged by statute with 
an absolute and certain duty, in the performance of which an 
individual has a special interest, is liable to an action if he refuse 
to perform it, notwithstanding his refusal may be prompted by 
an honest belief that the statute is unconstitutional. His motive 
appears to be immaterial.^ '^ An actionable wrong may be com- 

i Cooley on Torts, 379. 

« Waterer v. Freeman, Hob. 266. 

8 Sage V. Laurain, 19 Mich. 137. 

4 White V. Marshfleld, 48 Vt. 20; Fontiac v. Carter, 32 Mich. 164; Brinkmeyer 
V. Evansville, 29 Ind. 187; Freeport v. Isbell, 83 HI. 440; Ogg v. Lansing, 36 
Iowa, 495; Hill v. Charlotte, 72 K. C. 65; 21 Am. B. 451; Western College v. 
Cleveland, 12 Ohio N. S. 376. 

« Cooley on Torts, 383. 

« Clark V, Miller, 54 N. Y. 528; Keith r. Howard, 24 Pick. 292. 


mitted by the recorder by refusing to receive and record a con- 
veyance when it is tendered to him for recording, accompanied 
with the proper fees. He may also be chargeable with a like 
wrong if, in undertaking to record a deed, he commits an error 
which makes the conveyance appear of record to be something 
different from what it really is ; for his duty is to record it ac- 
curately. In this last case the question of difficulty would con- 
cern, not so much the existence of a right of action, as the • 
person entitled to maintain it ; in other words, who the party is 
who is wronged by the recorder's mistake." ^ When a grantee 
leaves a deed to be recorded, and it is incorrectly recorded, some 
cases hold that the grantee is not to be prejudiced by the 
recorder's error. It is said that the person seeking to take ad- 
vantage of the error, a second grantee from the same grantor 
for instance, ^^ is, in effect, claiming to enforce a statute penalty 
imposed upon the grantee in the deed by reason of his having 
omitted to do something the law required him to do to protect 
himself and preserve his rights. The law never intended a 
grantee should suffer this forfeiture if he has conformed to its 
provisions. The plaintiff claiming the benefit of the statute, 
being, as it is, in derogation of the common law, and conferring 
a right before unknown, he must find in the provisions of the 
statute itself the letter which gives him that right. To the 
statute alone we must look for a purely statutory right. All 
that this law required of the grantee in the deed was that he 
should file his deed for record in the recorder's office, in order 
to secure his rights under the deed. When he does that the 
requirements of the law are satisfied, and no right to claim this 
forfeiture can be set up by a subsequent purchaser. The stat- 
ute does not give to the subsequent purchaser the right to have 
the first deed postponed to his, if the deed is not actually re- 
corded, but only if it is not filed for record." In this instance the 
statute provided that all deeds, etc., should '^ take effect and be in 
force from and after the time of filing the same for record, and 
not before, as to all creditors and subsequent purchasers," etc.^ 

1 Cooley oxf Torts, 384. 

s Merrick t^.WaUace, 19 lU. 486. See, also, Polk v. Cosgrove, 4 Biss. 437 ; Riggs 
V. Boylan, Ibid. 445; Gerrard v, Davis, 53 Mo. 322; Mims v, Mims, 35 Ala. 23; 
McGregor v. HaU, 3 Stewt. & P. 397. / 

D. A. L— 15. 


Such being the law, the recorder is probably not responsi- 
ble in damages to the grantee unless actual damage is shown 
from some subsequent occurrence, as if he should negotiate a 
sale and find the erroneous record to be an obstacle to his com- 
pleting the sale. Still the deed might be recorded over again, 
unless it were lost or destroyed, when the consequences might 
be more serious.^ 

There is another class of cases in which it is held that every 
one has a right to rely upon the record actually made, as being 
correct, and if it is erroneous, the peril is upon the owner of 
the deed. An act provided that " no mortgage shall defeat or 
prejudice the title of any bona fide purchaser, unless the same 
shall have been duly registered." A mortgage for three thous- 
and dollars was recorded as one for three hundred dollars only. 
Chancellor Kent held that the true construction of the act was, 
that the ^' registry is notice of the contents of it and no more, 
and that the purchaser is not to be charged with notice of the 
contents of the mortgage any further than they may be con- 
tained in the registry. The purchaser is not bound to attend to 
the correctness of the registry. It is the business of the mort- 
gagee, and if a mistake occurs to his prejudice, the consequences 
of it lie between him and the clerk, and not between him and 
the bona fide purchaser. The act, in providing that all persons 
might have recourse to the registry, intended that as the cor- 
rect and sufficient source of information; and it would be a 
doctrine productive of immense mischief, to oblige the pur- 
chaser to look, at his peril, to the contents of every mortgage, 
and to be bound by them when different from the contents de- 
clared in the registry. The registry might prove only a snare 
to the purchaser, and no person could be safe in his purchase 
without hunting out and inspecting the original mortgage, a 
task of great toil and difficulty. I am satisfied that this was 
not the intention, as it certainly is not the sound policy, of the 
statute." ^ The principles here laid down have been followed 
in numerous other cases.^ Where a statute requires the index 

1 Cooley on Torts, 385. 

3 Frost V. Beekman, 1 Johns. Ch. 288, 298 ; S. G. 18 Johns. 544, reversed on 
other ground; New York Life Ins. Co. v. White, 17 N. Y. 469. 

* Barnard v. Campan, 29 Mich. 162; Brydon v. Campbell, 40 Md. 331; Terrell 
V, County, 44 Mo. 309; Jenning's Lessee v. Wood, 20 Ohio, 261; Sanger r. Oraigae, 


to give information of the contents of the deed, and what land 
is conveyed by it, the record is not constructive notice of the 
conveyance of anything which the index does not indicate.^ 
But if the purpose of indexing is only to facilitate the examin- 
ation of the records by the officer himself, and not to protect 
the interests of those whose conveyances are recorded, an error 
in indexing, or a failure to index a deed, would not prejudice 
the title of the grantee.^ It depends greatly upon the language 
and intention of the statute. A recorder may be responsible 
for recording papers not entitled to record, if the record when 
made causes injury and he knows that the registration is unau- 
thorized, as where he records a paper knowing it to be a for- 
gery.* A recorder is also liable for giving an erroneous certifi- 
cate, if it was an official act ; if the person calling for it had a 
right to do so, and it was the duty of the recorder to give it. 
But certifying as to whether a title was good or bad is not one 
of his official acts, and he is probably not liable for giving an 
erroneous certificate as to the character of titles. Neither does 
the recorder appear to be liable for giving an erroneous certifi- 
cate, except to the person who receives it from him. A subse- 
quent purchaser receiving the certificate with his title-deeds, 
and relying upon it as accurate, cannot hold the recorder liable, 
unless the certificates were purposely and knowingly made false 
with fraudulent intent.* 

A postmaster-general is not liable to individuals for the acts 
of his subordinates, although they are for their own separate 
misdeeds or neglect f nor is a postmaster liable for the loss or 
abstraction of a letter by one of his sworn assistants whose ten- 
ure of office depends upon the department ; ^ nor a mail carrier 

10 Vt. 566; Parrett v. Shaubhnt, 6 Mmn. 323; Baldwin vt Marshall, 2 Humph. 
116; Heister's Lessee v. Fortner, 2 Blnn. 40; Lally v, Holland, 1 Swan, 396; Shep- 
herd v. Burkhalter, 13 Ga. 444; Miller v. Bradford, 12 Iowa, 14; Chamberlain v. 

^ Scoles V. Wilsey, 11 Iowa, 261; Gwynn v. Turner, 18 Iowa, 1; Breed v. Con- 
ley, 14 Iowa, 269. 

3 Curtis V, Lyman, 24 Vt. 338; Bishop v. Schneider, 46 Mo. 472; 2 Am. B. 633; 
Commissioners v. Babcock, 6 Oreg. 472; Schell v. Stein, 76 Fa. 398. 

• Bamsey v. Biley, 13 Ohio, 167. 

4 Housman v. Girard Bnil^ngs &o. 81 Pa. 266; Wood v. Buland, 10 Mo. 143. 
See Ware v. Brown, 2 Bond, 267. 

^Hutchins v. Brackett, 22 N. H. 262 ; Bownlng t^. GoodchUd, 2 W. Black. 906 ; 
Lane t;. Cotton, 1 Ld. Baym. 646; 12 Mod. 472; 1 Salk. 17. 
•Schroyer v. Lynch, 8 Watts, 453; Wiggins v. Hathaway, 6 Barb. 632. 


for the loss of mail matter through the carelessness or dishon- 
esty of one of his sworn assistants,^ but it is otherwise if the as- 
sistant was merely his own servant or unsworn.^ So while a 
sheriff is generally liable for the misconduct of his deputies, yet 
if the deputy is employed to do something not connected with 
his office, though perhaps employed because of the office, he is 
regarded as only a private agent, and the sheriff is not responsi- 
ble, as where he is employed to foreclose a chattel mortgage by 
seizing the property mortgaged.® Neither is a sheriff liable 
where by consent of the plaintiff the deputy acts outside the 
scope of his official authority, as giving credit on an execution 
sale,* or accepting anything but money in payment,^ or acting 
according to the advice or direction of the plaintiff or his attor- 
ney,^ or acting within a discretionary authority with which they 
had invested himJ 

As to officers charged with the duty of making and repairing 
highways and public bridges, it has been held in New York 
that an action would not lie against an overseer of highways, 
at the suit of a party injured in consequence of a bridge over 
which he had supervision being out of repair.® This doctrine 
has been followed in other States.^ The general grounds for 
these decisions are that the duty is a duty to the public, not to 
individuals ; that it is compulsory ; that sometimes the neglect of 
the duty is an indictable offense, and that it would be unjust to 
hold them responsible out of their private estates for every in- 
jury that an individual might sustain, as well as liable to be 
indicted for every neglect of duty. Later New York cases, 

^Hutchins v. Brackett, supra. See Barnes v. Foley, 1 W. Black. 6id; Con well 
v. Voorhies, 13 Ohig, 523. 

a Sawyer v. Corse, 17 Gratt. 230. 

*DoTr V. Mickley, 16 Minn. 20 ; Harrington v. Faller, 18 Me. 277; Moulton v. 
Norton, 6 Barb. 286. 

^Gtorham v. Gale, 7 Cowen, 739; Armstrong v. G^arrow, 6 Cowen, 465. 

« Moore v, Jarrett, 10 Tex. 210. 

« Smith V. Berry, 37 Me. 298; Stevens v. Colby, 46 N. H. 163; Acker v. Ledyard, 
8 Barb. 514; Humphrey v. Hatbom, 24 Barb. 278; Cook v. Palmer, 6 Bam. & C. 
739; Tobey v. Leonard, 15 Mass. 200; Marshall v. Hosmer, 4 Mass. 60. 

7De Moranda v. Dunkin, 4 T. B. 120; Strong v. Bradley, 14 Vt. 65. 

8 Bartlet v. Crozier, 17 Johns. 439, reversing S. C. 15 Johns. 250. 

* Young V, Commissioners, 2 Nott & McC. 537; McKenziet?. Chovin, 1 McMuU. 
222; McConnell v. Dewey, 5 Neb. 385; Dunlap v. Knapp, 14 Ohio, N. S. 64; Lynn 
V. Adams, 2 Ind. 143. 


however, do not subscribe to this doctrine, where the officers 
have the means of performing their duty, and they have notice 
or should take notice of the condition of the bridsces. These 
cases hold that the officers are bound to repair them with reason- 
able and ordinary care and diligence, and if they omit this duty 
they are liable to individuals who sustain special damages from 
such neglect, and this on the ground that defective bridges are 
dangerous, and travelers generally have no means of knowing 
whether they are safe or not. They have to rely upon the 
fidelity and diligence of the highway commissioners who are 
the only persons whose duty it is to see that the bridges are in 

§ 114. Naval and military officers. — A subordinate officer 
has no remedy at law against his superior for an act done in the 
course of discipline, and under powers incident to his position, 
so long as it is not a corrupt and malicious abuse of authority.^ 
Nor is a naval or military officer responsible for acts done by 
him in obedience to the commands of his superior offitjer, or of 
the govennment he serves, unless the commands are manifestly 
illegal.* Thus, where two vessels were chartered by the gov- 
ernment for a naval expedition, and the captains of the vessels 
were to pay implicit obedience to the orders of the officers com- 
manding, and one of the vessels sustained damages from the 
other whilst obeying orders, the owner of the injured vessel was 
held to have no remedy at law against the owner of the other. 
In such cases, however, the damage must be the natural result 
of the execution of orders, and not caused by negligence or 
want of nautical skill.^ 

1 Smith V. Wright, 24 Barb. 170; Hover v, Barkhoof, 44 N. Y. 113; Rectory. 
Pierce, N. Y. Sup. Ct. Thomp. & C. 416. See, also, Hathaway o. Hinton, 1 Jones 
N. C. 243; Huffman v. San Joaquin County, 21 Cal. 426; Sutton v. Board, 41 Miss. 
236; County Commissioners v. Duckett, 20 Md. 468; County Commissioners v. 
Gibson, 36 Md. 229. A notary public is not liable if he obeys directions, though 
they turn out to be erroneous. (Commercial Bank v. Varnum, 49 N. Y. 269.) 
See generally, as to liability of notaries, Emmerlin^ v. Graham, 14 La. An. 389; 
Warren Bank v, Parker, 8 Gray, 221; Franklin v. Smith, 21 Wend. 623; Bank v. 
Marston, 7 Ala. 108; Bowling r. Arthur, 34 Miss. 41. 

2 Johnstone v. Sutton, IT. R. 544; Wall v. McNamara, 1 T. R. 636; Grearv. 
Marshall, 4 F^st. & F. 485; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; S. C. 9 
Best. & S. 768; Dawkins v. Lord Rokeby, 4 Fost. & F. 806. 

* Buron t;. Denman, 2 Ex. 167; Biggs v. State, 3 Cold. 85. 

* Hodgkinson v. Femie, 2 Com. B. N. S. 436. 






§ 115. Injuries from negligence. 

§ 116. Remote and proximate damages. 

§ 117. Remote consequences. 

§ 118. Remote consequences—Injuries from fire. 

§ 119. Injuries caused by railway locomotives. 

§ 120. Contributory negligence. 

§ 121. Plaintiffs duty to prevent injury. 

§ 122. Contributory negligence on part of servants. 

§ 123. Contributory negligence— Injuries to children. 

§ 124. Negligence of master— Injuries to servants. 

§ 125. Injuries to servant— Exemption of master. 

§ 126. Injuries to servants from their fellow-servants. 

§ 127. Negligence of servants. 

§ 128. Negligent mduagement of chattels— Inevitable accident. 

§ 129. Successive negligence of two or more. 

§ 130. Contemporaneous negligence. % 

$ 131. Intervening negligence. 

§ 132. Mutual negligence. 

§ 133. Negligence of medical men. 

§ 115. Negligence, injuries from. — In actions for injuries 
through negligence, it is a general principle that a person is an- 
swerable for the consequences of his negligence only so far as 
they are the natural and proximate results of the injury, and 
might have been anticipated by ordinary forecast, and not for 
those consequences arising from a conjunction of his fault with 
circumstances of an extraordinary nature. The damages must be 
both the natural and proximate consequence of the act com- 
plained of, and the direct and not remote result of the defend- 
ant's wrong. Whenever there intervenes the independent act 
of a third person between defendant's negligence and the injury 
sustained, and it affects the result and is the immediate cause of 
injury, the plaintiff cannot recover against the original wrong- 
doer.^ But, however plain the general principle may appear, 

1 Fairbanks v. Kerr, 70 Pa. 86; Ryan v. Company, 36 N. Y. 210; Cuff v. New- 
ark Company, 35 N. J. L. 17 ; Whart. on Negligence, sec. 131; Field on Damages, 


there has arisen the utmost difficulty in its application. What 
results are proximate and will give the plaintiff a right of ac- 
tion ? And what consequences are so remote that the plaintiff 
is remediless, and is practically a victim of the doctrine of 
damnum absque injuria? The theories of metaphysicians on 
the subject of causation hav^ been brought forward to assist 
the law, and not always with the happiest results.^ Suppose 
through the negligence of a railroad company the house of A, 
near a railroad, is set on fire, without his fault, by sparks and 
cinders from a locomotive of the company, and is consumed, 
and the fire communicating itself to the buildings of B, C, and 
D, successively, such buildings are successively consumed, and 
without the owners' fault : is the company liable to B, C, and 
D ? — or would the company be liable to the inhabitants of a 
whole city, should the fire communicate to it? — and if not, where 
is the line to be drawn? If a man eats of a particular food, 
harmless to others, but which disagrees with his particular state 
of health, or his peculiar constitution, and he dies, which is the 
remote and which the proximate cause of his death — the food 
he partakes of, or the weakness or defects of his frame ? If his 
constitution had been different, or if he had not partaken of the 
food — in either event — ^he might have lived. If it be readily 
answered that the dish was the proximate cause, the question 
arises, but what caused the man's death? John Stuart Mill 
would reply, both together; or both combined with previous 
causes, as those things which originally impaired the man's 
health, etc. ; or, as he terms it, the ^^ sum of all the anteced- 
ents." But this is not of much assistance to a jury. The au- 
thorities on the subject are conflicting. It has been held that 
where, through the defective condition of defendant's locomo- 
tive, a quantity of wood was ignited in one of the company's 
sheds, and the shed was consumed, and that fire communicated 
to and consumed the plaintiff's house about one hundred and 
thirty feet distant from the shed, the plaintiff could not recover 
from the company .^ In this case. Hunt, J., said : " If an en- 
sec. 6(H. See John Stuart Mill on the subject of Causation, 1 Mills' Logic, 2nd. 
* liond. ed. 396. 

^See article by Wharton, Southern Law Rev. Jan. 1876; Whart. on Neg. 

2 Kyan v, N. Y. Central R. R. Co. 36 N. Y. 210. 


gineer upon a steamboat or locomotive, in passing the house of 
A, 80 carelessly manages its machinery that coals and sparks 
from its fires fall upon and consume the bouse of A, the rail- 
road company or the steamboat proprietors are liable to pay the 
value of the property thus destroyed,^ Thus far, the law is 
settled, and the principle is apparent. If, however, the fire 
communicates from the house of A to that of B, and that is de- 
stroyed, is the negligent party liable for this loss ? And if it 
spreads thence to the house of D, and thence consecutively 
through the other houses until it reaches and consumes the 
house of Z, is the party liable to pay the damages sustained by 
these twenty-four sufferers ? The counsel for the plaintiff does 
not distinctly claim this, and I think it would not be seriously 
insisted that the sufferers could recover in such case. Where^ 
then, is the principle upon which A recovers and Z fails ? It 
has been suggested that an important element exists in the dif- 
ference between an intentional firing and a negligent firing merely ; 
that when a party designedly fires his own house, or his own 
fallow land, not intending, however, to do any injury to his neigh- 
bor, but a damage actually results, that he may be liable for 
more extended damages than where the fire originated in accident 
or negligence. It is true that most of the cases where the liabil- 
ity was held to exist were cases of intentional firing. * * * 
Without deciding upon the importance of this principle, I pre- 
fer to place my opinion upon the ground that in the one case — 
to wit, the destruction of the building upon which the sparks 
were thrown by the negligent act of the party souglFt to be 
charged — the result was to have been anticipated the moment 
the fire was communicated to the building ; that its destruction 
was the ordinary and natural result of it« being fired. In the 
second, third, or twenty-fourth case, as supposed, the destruction 
of the building was not a natural and expected result of the 
first firing. That a building upon which sparks and cinders fall 
should be destroyed or seriously injured must be expected ; but 
that the fire should spread and other buildings be consumed is not 
a necessary or an usual result. * * * To sustain a claim like 
the present, and to follow the same to its legitimate consequen-^ 
ces, would subject to a liability against which no prudence 

1 Field V. Company, 32 N. Y. 339. 


could guard, and to meet which no private fortune would 
be adequate. Nearly all fires are caused by negligence in its 
extended sense. 

*' In a country where wood, coal, gas, and oils are universally 
used, where men are crowded into cities and villages, where 
servants are employed, and where children find their homes in 
all houses, it is impossible that the most vigilant prudence should 
guard against the occurrence of accidental or negligent fires." ^ 
So where a railroad company, through its negligence, set fire to 
the house of another, and the fire therefrom was communicated 
to the house of a third party, which was consumed with its con- 
tents, the company was held not liable for the loss of the last 
building, on the ground that a party guilty of negligence pro- 
ducing loss is not liable for all the ensuing and remote conse- 
quences.* These are cases where the loss has been held dam- 
num ahsq^ue injuria. It cannot, however, be denied that there 
are many recent and well-considered cases to the contrary, and 
where such damages have been held not too remote. As it is 
not our purpose to deal with cases where a recovery has been 
allowed, a reference only will be made to them in the note. The 
authorities upon the subject are in direct conflict, and the facts 
presented in some of the adverse cases are virtually the same.' 


§ 116. Remote and proximate damages. — Where de- 
fendant's servant, in breach of an act of Parliament, washed a 
carriage in a public street, and allowed the waste water to run 
down a gutter toward a grating leading to a sewer, but in con- 
sequence of the grating being stopped up, without the defend- 
ant's knowledge, the water flowed over the road, and subsequently 
froze, and defendant's horse slipped upon the ice and injured 

1 Ryan v. N. Y. Central R. R. Co. 36 N. Y. 210. 

* Pa. R. R. Co. V. Kerr, 62 Pa. 363. 

* That the plaintiff may recover, and that such damages are not too remote, 
see Fent v. Toledo &c. Compaily, 69 111. 349; Kellogg v. Company, 26 Wis. 223; 
Atkinson v. Company, 12 Kan. 354; Annapolis Co. v. Gantt, 39 Md. 116; Ridgely 
p. Hewitt, 6 Ex. 240; Greenland v. Chaplin, 6 Ex. 243; Montoyer v. Company, 6 
Ex. 451; Tweed v. Insurance Co. 7 Wall. 44; Illidge v. Goodwin. 24 Eng.C. L. 
272; Powell v. Deveney, 3 Cush. 300; Lynch v. Nurdin, 41 Eng. C. L. 422; Van- 
denburgh «. Truax, 4 Den. 464; Hart v. Company, 13 Met. 99; Perley u. Company, 
96 Mass. 414; Cleveland u. Company, 42 Vt. 449; Piggott r. Company, 64 Eng. 
C. L. 229; Smith r. Company, 6 Iaw R. Com. P. 98; Scott v. Shepherd. 2 W. 
Black. 292. 


himself, the damage was held too remote to fix the defendant's 
liability. And in actions for slander, where a third person inter- 
venes and repeats the slanderous words, and the language is not 
actionable per 86, and if it had not been for the intervention 
and repetition by the third person, no actual damage would 
have been suffered, the original utterer has been held not 

§ 117. Remote consequences. — Many cases of remote 
damages may be said to be cases of damnum absque iryuria^ 
when they are not in the direct line of causation, nor the loss 
the direct and natural result of the injury or part of the chain 
of results. For instance, where a singer in the plaintiff's theater 
had been libeled, and a suit was brought by the proprietor of 
the theater against the publisher, and it was alleged that by 
reason of the libel the singer had been deterred from singing, 
whereby his profits were lost, it was held by Lord Kenyon that 
the damages were too remote ; that if damages had occurred 
they might have been occasioned by the vain fear or caprice 
of the actor. There might have been an intervening cause, not 
the legitimate result of the injury.^ And where a horse, being 
driven with due care, became jErightened by the striking of the 
vehicle he was drawing against a defect in the highway, which 
it was the duty of the defendant to keep in repair, and escaping 
the control of the driver, at the distance of fifty rods from the 
defect, injured the plaintiff, who was on foot in the highway, 
and who was using due care, the court held that the defendant 
was not responsible for the injury.^ But if the injury had been 
to the driver, or one riding in the sleigh, it was conceded that 
there would have been no question< as to the liability of the de- 
fendant. And where a drafted man deserted before being mus- 
tered into the service, and the plaintiff, in consequence, was 
drawn and obliged to serve in the army in place of the deserter, 
and brought a suit against him for theMamages sustained there- 

i Sharp V. Powell, L. R. 7 Ex. 263; Olmstead v. Brown, 12 Barb. 657; Ward «. 
Weeks, 7 Bing. 211. • 

2 Ashley v, Harrison, Peake, 193; S. C. 1 Esp. 48. See Taylor v. Neri, 1 Esp. 

8 Marble v. Worcester, 4 Gray, 395. But see Wiley r. Belfast, 61 Me. 569; Clark 
V. Lebanon, 63 Me. 393. 


by, the damages were held too remote and contingent to sustain 
the action.^ 

§ 11& Injury from fire — Where negligence too remote. 

Where, by the negligence of another, a building was burned, 
and the fire spread to and destroyed an adjoining house, the 
negligence was considered too remote to give the owner of the 
latter house a remedy for his loss against the party by whose 
negligence the fire originated.^ In a Pennsylvania case the 
court say : " There are often very small faults which are the 
occasion of the most serious and distressing consequences. 
Thus, a momentary act of carelessness set fire to a little straw, 
and that set fire to a house, and by an extraordinary concurrence 
of very dry weather and high winds, with this fault, one-third 
of a city — ^Pittsburgh — was destroyed. Would it be right that 
this small act of carelessness should be charged with the whole 
value of the property consumed ? " ^ And so it has be^n asked, 
" Should the careless act of the woman who originated the great 
fire at Chicago make her liable in damages for all the losses that 
resulted therefrom ? " * In some States the question of negli- 
gence in such a case, whether the loss is too remote, is deemed 
proper to be left to the jury as a question of fact.^ But as to 
fires caused by sparks from locomotive engines, the railroad com- 
panies seem not to have been so fortunate as to altogether escape 
immunity for very remote damages. As where the fire passed 
over the premises of three or four different persons, and finally 
burned the plaintiff's property, the company was held liable ; ^ 
and although some of the cases were under special statutes, the 
latter, in the opinion of the courts, do not appear to have 
affected the general rule. There are many cases which hold, in 
such actions against railroads, that the questions of negligence 

^ Dennis v. Larkin, 19 Iowa, 434. 

« Ryan v. Company, 36 N. Y. 210; Pai R. Co. v. Kerr, 62 Pa. 353. 

* Morrison v. Davis, 20 Pa. 171. 

* Field on Damages, sec. 50, note. 

* Toledo &c. V. Pindar, 63 111. 447; Ohio &c. v. Shanefelt, 47 111. 497; Illinois &c. 
t'. Nnnn, 51 111. 78; Kellogg v. Chicago &c. Co. 26 Wis. 223. 

^Perley v. Company, 98 Mass. 414; Gen. Stats. Mass. chap. 63, sec. 101. See 
Smith V, Company, 6 Law R. Com. P. 68; 18 Week. R. 343; 21 L. T. N. S. 668; 19 
Week. R. 230, affirmed on appeal; Ingersoll v. Company, 8 Allen, 438; Field v. 
Company, 32 N. Y. 339: Webb v. Company, 3 Lans. 463. See cases contra^ cited 
in § 119. 


and contributory negligence are properly for the jury to determ- 
ine, and that '^ the maxim, causa proxima et non remota spec- 
tatur^ is not limited by time or distance, nor by the succession 
of events." ^ The cases in regard to railroads have been con- 
sidered irreconcilable with the other cases already referred to in 
regard to remote damages, where the courts have considered 
them too remote as a question of law.^ In actions for seduction, 
loss of service resulting from the illness of the woman seduced, 
caused by mere distress of mind, owing to the desertion of the 
seducer, or of illness in consequence of being threatened with 
exposure, in a suit against the defendant for the seduction, have 
been held too remote damages ; ^ and so have the probable ex- 
penses of supporting the illegitimate child.^ In an action for 
malicious prosecution, whereby the plaintiff was driven to an 
assignment, and loss occurred in the sale of goods under the 
assignment,^ and in an action for damages resulting from a rail- 
road collision, where it appears from the character of the frac- 
ture of the plaintiff's leg that it was probable that a second 
fracture would take place,^ these consequences and probable 
results were held too remote to entitle the plaintiff to recover 

In regard to liability for remote damages, Field remarks'" that 
" it is impossible to deduce a rule from the conflicting decisions. 
On the one hand there is a sentiment, perhaps in accord with a 
sound public policy, that the mere negligent tort-feasor should 
not be held for all those remote but direct losses which may re- 
sult from his negligence. While the doctrine of the court in 

1 KeUogg r. Company, 26 Wis. 223; Martin v. Company, 23 Wis. 437; Piggott 
t'. Company, M B. C. L. 228; Vaugh v. Menlove, 7 C. & P. 626; 32 E. C. L. 613; 
Hewey v. Nourse, 64 Me. 266; Bachelder v. Heagau, 18 Me. 32; Cleveland v. Com- 
pany, 42 Vt. 449; Barnard v. Poor, 21 Pick. 378; McCready v. Company, 2 Strob. 
366; Fero v. Company, 22 N. Y. 209; Freemantle v. Company, 100 E. C. L, 88; 
Hart V. Company, 13 Met. 99; Ingersoll v. Company, 8 Allen, 438; Hooksett v. 
Company, 38 N. H. 242. 

2 Field on Damages, sec. 62. 

8 Knight 0. Wilcox, 14 N. Y. 413; Boyle r. Brandon, 13 Mees. & W. 738. 

* Haynes v. Sinclair, 23 Vt. 108. 

8 Donnell v. Jones, 13 Ala. 490. See Fitzjohn r. McKidder, 2 L. T. N. S. 374; 
Burnap v. Wright, 14 111. 301. 

Lincoln v. Company, 23 Wend. 426. See Stone r. Codman, 16 Pick. 397; 
Brown v. Canunings, 7 Allen, 607. 

7 Damages, sec. 63. 


Syan v. The New York Central Railroad Company^ would hold 
a company responsible for a fire directly caused by its negli- 
gence, as where a house should be ignited by sparks blown di- 
rectly from the company's locomotive, still if the sparks first ig- 
nite combustible substances belonging to the company, and from 
thence fire is communicated to another's property, and he sus- 
tains loss, no recovery can be had of the oompany. In case of 
the willful firing of one's own or another's building, a more ex- 
tended rule of damages would be applicable, and the willful 
wrong-doer would be held on general principles to contemplate 
all the damages which legitimately follow, and be liable for all 
the consequences of his wrongful act, however remote the 
results or overwhelming the disaster.^ And perhaps we may 
say, in the light of the adjudications on this subject, that the 
rule seems to vary in different cases, and to be limited, or extend 
to losses more or less remote, depending upon the motives or 
degree of negligence. " * Where the owner of a horse negligently 
allowed it to stray at large, it was considered that the owner 
would be responsible for all such damage as in the ordinary 
sequence of events might be expected to occur therefrom, such 
as the horse's walking into a neighboring pasture, consuming 
grass, etc., but not for a kick to a child in the road, unless it 
were shown that the horse was naturally of a vicious disposi- 
tion, and wont to kick, and that the owner knew it.^ The mere 
fact of diseased sheep getting among the plaintiff's healthy 
flock, and infecting it with the disorder, establishes no cause of 
action against the owner of the former unless it be proved that 
defendant knew them to be infected, and neglected to take 
proper and reasonable precautions to prevent them from getting 
mixed with healthy flocks.* At common law, if the owner of a 
dog allowed the dog to stray away, and the dog trespassed upon 
neighboring land, and worried and killed a neighbor's sheep, the 
owner of the dog was not responsible for the damage done, as 

136N. Y. 210. 

« Allison 17. Chandler, 11 Mich. 542. r^ . aoa 

•Scott r. Shepard, 2 W. Black. 893; Vandenburgh v. Truax, 4 Demo, 484; 

Goille V. Swan, 19 Johns. 381. „ xr a aqa ^o 

*Holden V. Shattuck, 34 Vt. 336; Cox ». Burbidge, 13 Com. B. N. ». 4JU; J^ 

Law J. Com. P. 89. But see EHckson v. McCoy, 39 N. Y . 400. 
» Cooke V. Waring, 32 Law J. Ex. 262; Fisher v. Clarke, 41 Barb. 329. 


worrying the sheep was said not to be in accordance with the 
natural instinct of the animal, and might not be expected to 
result from the animal's straying away ; but if the owner knew 
that the dog had worried or killed sheep, the rule was different,^ 

§ 119. Fires caused by railway locomotives. — In the 

United States it is held by numerous authorities that the mere 
fact that a fire was occasioned by sparks from a railway loco- 
motive does not make a prima facie case against the company, 
as the emission of sparks from the locomotive is not in itself il- 
legal, and negligence cannot be inferred from the fire alone. If 
the company has adopted such safeguards as modem improve- 
ments enable it to do, the ensuing injury appears to be damnum 
absque injuria,'^ There must be negligence, or some statutory 
provision to fix the liability.^ 

§ 120. Contributory negligence. — The plaintiff can derive 
no benefit from his own wrong. Nvllus commodum capere po- 
test de injuria sua propria ; and the maxim is applicable where 
the party materially contributes to his own injury. He cannot 
recover for such losses as result from his own or from his own 
and another's fault.* In pari delicto potior est conditio defend- 
entis. Whether the contribution to the injury on the part of the 
plaintiff was willful, or merely the result of his negligence — 
whether it consisted in doing what he ought not to have done, or 
not doing what he should have done — ^if his negligence or wrong 

^Ibid. Wbere a defendant bought a horse and took him out to try him in a 
frequented thoroughfare, and from some unexplained cause the horse became 
restive, and notwithstanding the defendant's well directed efforts to control 
him, ran upon the pavement and killed a man, these facts were held not to con- 
stitute any evidence of negligence which the court was authorized to submit to 
a jury. The defendant knew nothing of the disposition of the horse, and exhib- 
ited no want of care or skill, and did all he could to prevent the accident. 
(Hammack v. White, 11 Com. B. N. S. 588.) 

3 Gandy v. Company.. 30 Iowa, 420; Sheldon v. Company, 14 N. Y. 218; Frank- 

•fort Company v. Philadelphia Company, M Pa. 346; Burroughs v. Company, 

15 Conn. 124; Fero v. Company, 22 N. Y. 209; Rood v. Company, 18 Barb. 

80; Macon Company v. McConnell, 27 Ga. 481; Smith v. Company, 37 Mo. 287. 

Bnt see Hull v. Company, 14 Cal. 387; nilnois Company v. Mills, 42 HL 407. 

* See as to what will constitute such negligence cases just cited, and Jackson 
V. Company, 31 Iowa, 176; Webb v. Company, 49 N. Y. 430 \ Bedell v. Company, 
44 N. Y. 367 ; Field i;. Company, 32 N. Y. 339. 

« Aurora &c. v. Grimes, 13 HI. 586; Chicago Co. v. George, 19 HI. 610. 



proximately contributed to produce the injury of which he com- 
plains, so that but for his concurring and co-operating fault the 
injury would not have happened to him, he cannot recover 
therefor. •As between the parties, the injury must be caused 
by the defendant's fault. Nor can the plaintiff recover if the 
injury is the result of the want of ordinary care on the part of 
both, or if, by the use of ordinary care, he might have avoided 
the injury."^ The proposition that a person cannot recover 
damages where, by his own negligence, he has exposed himself 
to injury, is sustained by numerous authorities, both English and 
American.^ It may be stated as a general rule that it is a defense 
to an action of tort that the negligence of the plaintiff contribu- 
ted to produce the damage complained of.^ The law makes 
men liable for those torts alone which they have caused. If 
the defendant did not— either personally, or by another under his 

iShearm. & Redf. on Negligence, sec. 25 and notes; Spencer v. Utica &c. 5 
Barb. 337; Brown v. MaxweU, 6 Hill, 592; Duggins v. Watson, 15 Ark. 118; Grip- 
pen V, Company, 40 N. Y. 34; Bigelow t7. Reed, 51 Me. 326; Reeves v. Company, 
30 Pa. 454; Beers v. Company, 19 Conn. 566; Beatty v. Gilmore, 16 Pa. 463. 

2 Murphy v. Dean, 101 Mass. 455; Wheelock v. Company, 105 Mass. 403; Wilds 
V, Company, 44 K. Y. 430; Adams v. Carlisle, 21 Pick. 146; Butterfield v. Forres- 
ter, 11 East, 60; Sill r. Brown, 9 Car. & P. 601; Griffiths v, Gidlord, 3 Hurl. & N. 
648; Yanderplank v. Miller, 1 Moody & M. 169; Lygo v. Newbold, 9 Ex. 302; 
Great N. R. r. Harrison, 10 Ex. 376; Caswell v. Worth, 6 El. & B. 549; Kennard 
V. Burton, 25 Me. 49; Webb v. Company, 57 Me. 117; State v. Company, 52 N. H. 
528; Robinson v. Cone, 22 Yt. 213; Gahagan v. Company, 1 Allen, 187; Garrett t;. 
B. B. 6 Gray, 64; Berge v. Gardner, 19 Conn. 507; Grippen v. R. R. 40 N. Y. 34; 
SUliman v. Ijewis, 49 N. Y. 255; Blakely v. LeDuc, 19 Minn. 187; 111. Cent. R. v. 
Baches, 55 111. 379; Pittsburgh & F. W. R. v. Methuen, 21 Ohio St. 683; Moore v. 
Cent. R. R. 4 Zab. 284; Morris & E. R. v. Haslan, 33 N. J. 147; New Jersey Ex. 
Co. V. Nichols, 33 N. J. 434; Pennsylvania R. R. Co. v. Goodman, 62 Pa. 329; 
Baltimore & O. R. v. Fitzpatrick, 35 Md. 32; Kelly v, Hendric, 26 Mich. 255; Gay 
V, Winter, 34 Cal. 153; Needham v. San Francisco R. R. 37 Cal.400; Baird v. Mor- 
ford, 29 Iowa, 531^ Wheeler v. Westport, 30 Wis, 392; Macon &c. v. Bab^, 42 Ga. 
327; Morrison v, Cornelius, 63 N. C. 346; Kahn v. Love, 3 Oreg. 206; Union &c. 
V. Nottingham, 17 Gratt. 115; Walsh v. Company, 52 Mo. 434; Fleytas t;. Com- 
pany, 18 La. An. 339; Hill v. R. R. 11 La. An. 292; Knight v. R. R. 23 La. An. 
462. A company owning a steam-tug contracted to tow a canal-boat at the risk 
of the latter' s master and owner. While the canal-boat was being towed, her 
master faUed to display proper lights, by reason of which another tug of the 
same company ran into and sunk her, and her cargo was lost. In an action by 
the owners of the cargo against the company, it was held that the latter were 
not masters of the canal-boat pro hoc vice^ nor common carriers of the canal- 
boat, nor chargeable with the negligence of her master, and that the plaintiffs 
could not recover on any ground, being themselves guUty of contributory negli- 
gence. (Arctic F. Ins. Co. v. Austin, 69 N. Y. 470.) 

* Murphy v. Deane, 101 Mass. 455. 


authority, express or implied — cause the damage, he is not liable. 
If there has intervened between the act or omission of the de- 
fendant and the damage sustained by the plaintiff an act or 
omission which contributed to effect the damage, the injury 
might not have happened ; and so where the fault is contempo- 
raneous, as in some cases of collision, where the fault on either 
side might have been sufficient to produce the injury. These 
rules appear plain in theory, but the courts have found them ex- 
ceedingly difficult in their application. It will be necessary to 
discuss the subject at length. We shall endeavor to show what 
will defeat recovery, as that alone comes within the scope of 
this book. Wharton in his Treatise on Negligence says : " The 
true ground for the doctrine is, that by the interposition of the 
plaintiff's independent will, the causal connection between the 
defendant's negligence and the injury, is broken. The principle, 
however, must be accepted with qualifications. There must be 
a causal connection between the plaintiff's negligence and the 
injury. The plaintiff, as a rule, must be a person to whom the 
alleged contributory negligence is imputable — excluding, there- 
fore, persons distracted by sudden terror ; persons of unsound 
mind and drunkards ; persons deprived of their senses, and in- 
fants. If the defendant is guilty of gross negligence, he cannot 
set up a trifling negligence or inadvertence of the plaintiff as a 
defense." ^ If, by want of ordinary care, a plaintiff may have 
avoided the consequence of defendant's negligence, he is consid- 
ered to be the cause of his own injury ; ^ and where the conse- 
quences of the defendant's negligence have subsequently been 
aggravated by the want of ordinary care, or by the negligence 
of the plaintiff, this may go in mitigation of damages ; but it 
cannot' defeat the plaintiff's right to recover for fhe wrongs for 
which the defendant is responsible.^ The plaintiff cannot re- 
cover, notwithstanding defendant's negligence, if he has so far 
contributed to the accident by the want of ordinary care that but 
for that the accident would not have happened ; but though the 
plaintiff has so contributed to the accident, he is not disentitled to 

^Whart. on Keg. sees. 300, 901. 

> Hance v. Company, 26 N. Y. 42S; Bridge v. Company, 3 Mees. & W, 244. 
* Sherman v. FaU Biver Iron Works, 6 AUen, 213; Chase v. Company, 24 Barb. 
273; Wright v. Company. 20 Iowa, 196. 


recover if the defendant, by ordinary care, could have avoided the 
consequences of the plaintiff*8 neglect ; and when, but for the 
plaintiffs negligence at the time, he might have escaped the 
consequences of the defendant's negligence, he cannot recover.^ 
As remarked in an Iowa case, ^' the leading principle here laid 
down is that the plaintiff cannot recover for an injury resulting 
from the negligence of the defendant, if, notwithstanding such 
negligence, his own want of care and prudence, or that of the 
party injured, in any way contributed directly to the injury," 
This language was held in a case in which the plaintiff's intes- 
tate brought an action for wrongful treatment of the deceased, 
and for injuries received through negligence, whereby the death 
of the deceased was alleged to have been occasioned. It ap- 
peared that the deceased got upon the cars after dark ; that he 
was very drunk ; that he did not pay his fare when demanded 
by the conductor. For this reason he was thrown or dragged 
from the train about four o'clock A. M. Six or more hours 
thereafter, at a point nearly one-half mile from the depot where 
he had been left, he was run over by another train. The jury 
rendered a verdict of $1,500 for the plaintiff, and the appellate 
court awarded a new trial.^ Where bricklayers employed by 
the defendant had wrongfully laid rubbish before the defend- 
ant's door, by the side of a highway, and whilst the plaintiff 
was passing in his chaise the wind raised a whirlwind of the 
rubbish, which frightened the plaintiff's horse and caused it to 
start on one side in the direction of an approaching wagon, and 
the plaintiff, to prevent the horse from running against the 
wagon, pulled him sharp around, and the horse then ran over a 
lime-heap before another person's door, and the shaft was broken 
by the shock, and the horse, being then still more frightened, 

1 Scott V. Company, 11 L B. C. L. 387; Griggs v, Fleckenstein, 14 Minn. 81; 
Donaldson v. Company, 18 Iowa, 280; McAnnick v. Company, 20 £owa, 338; 
Drake t7. Mount, 33 N. J. L. 441. 

' Haley v. Company, 21 Iowa, 15. The general principle announced in this 
case is correct, bat perhaps it would have been better to have rested the failure 
to recover upon the ground that, under the peculiar facts of the case, the injury 
was too remote as against the defendant. It could not have been fairly inferred 
that deceased would have wandered a half mile from the depot and then have 
been killed by another train. If he had remained on the track at the depot 
the case would have been different. See Bedfleld on Hallways, 330; Brown v. 
Company, 60 Mo. 461; Walsh v. Company, 52 Mo. 434. 

D. A. I.— 16. 


ran away, upset the chaise, and threw out and injured (he 
plaintiff, it was held that although defendant was to blame for 
putting the rubbish by the side of the road, yet if the plaintiff's 
running against the second heap of rubbish was caused by his 
pulling the horse around too sharply, the immediate cause of 
the injury was his own unskillfulness in the management of 
his horse rather than the wrongful act of the defendant.^ 
Where the plaintiff complained that the defendant had hired 
him to carry a load of lumber, and that he carried the load to 
the place of destination, and asked the defendant where it was 
to be deposited, but the defendant would give no directions, and 
made the plaintiff's horses, which were heated, stay so long in 
the wagon that they took cold, and some of them died, and the 
rest were disabled,' the immediate cause of the injury was held 
to be the plaintiff's own neglect in not putting the horses in a 
stable, and the defendant was held not responsible.^ Where 
the defendant left the wooden covering of a cellar leaning 
against the wall, and the plaintiff, a child seven years old, got 
upon it and jumped from it, and in consequence thereof it fell 
upon him and injured him, he was considered to be without 
remedy against the defendant ; ^ and where one exposed for sale 
a machine which any passer-by might set in motion, and which 
was dangerous when set in motion, and the plaintiff, a boy of 
four, by direction of his brother put his hands in the machine 
while his brother set it in motion, he was not allowed to recover 
against the owner of the machine.^ 

It is to be observed that the doctrine of contributory negli- 
gence is to be taken with this qualification, that if, in addition 
to the negligence of defendant, there enters the element of mal- 
ice or pure willfnlness, the contributory negligence of plaintiff 
is a false quantity, and defendant is liable. Although one 
may have placed himself in a position of danger, yet if the de- 
fendant needlessly, or wantonly, or recklessly injures him, the 
plaintiff can still recover.^ Yet in the absence of such wilf ul- 

1 Flower v. Adams, 2 Taunt. 314. 
a Virtue v. Bird, 2 Jjev. 196. 
» Abbott V. Macfie, 33 Law J. Ex. 117. 
* Maugan v. Atterton, Law R. 1 Ex. 239. 

s Litchfield &c. v. Taylor, 81 111. 590; Indianapolis &c. v. McGlure, 26 Ind. 370; 
Mulherrin t;. Delaware &c. 81 Pa. 366; Chicago &c. v. Donahue, 75 111. 106; Hartr 


ness or wantonness the general rule established by a greatly pre- 
ponderating weight of authority, both in England and America, 
is that if the injured party might 'by the exercise of ordinary 
care have avoided the consequences of the defendant's negli- 
gence, and did not, the defendant will neither be held liable, nor 
will the damages be apportioned between the parties.^ 

Further instances. — Where there were five parallel railroad 
tracks, and cars were constantly passing, and plaintiff was per- 
fectly familiar with the fact, his failure to look both ways was 
held to be fatal negligence on his part, so that he could not re- 
cover, although he had just seen a train pass ; and the negli- 
gence of the agents of the company was considered immaterial. 
The fact that the neighboring buildings and the nature of the 
crossing made it difficult for him to see both ways, the court 
said, should have made him more careful.^ So it is held gross 
negligence for a person to stop on a railroad track at the usual 
time for the passage of a train, and allow his attention to be di- 
verted in another direction from the cars until he is thrown from 
the track by a collision.® A railroad passenger cannot recover 
against the company for an injury partly caused by placing his 
arm or elbow outside a car window.^ So where* one attempts, 
without apparent reason, to pass between cars in motion and 
propelled by a locomotive.^ In an action against a company 

field V. Boper, 21 Wend. 615; Norris v. Litchfield, 35 N. H. 271; Daley v. Norwich 
&c. 26 Conn. 591;^Cooper v. Company, 44 Iowa, 134; Macon &c. v. Davis, 18 6a. 
679; Brown v. G^pany, 60 Mo. 461; State v. Manchester &c. 52 N. H. 628. 

^ A multitude of cases might be cited to sustain this rule; a few only of the 
later ones will be given, which with their citations will fully establish it: Gray 
V. Company, 65 N. Y. 661; State v. Company, 52 K H. 528; Central &c. r. Van 
Horn, 38 N. Y. 133; Garmon v, Bangor, 38 Me. 443; Hill v. New Haven, 37 Vt. 
601; Baltimore &c. v. Mulligan, 45 Md. 486; Forks Township v. King, 84 Pa. 230; 
Bailroad Company v, Jones, 95 U. S. R. 439; Indianapolis &c. v. Horst, 93 U. S. 
B. 291 ; Michigan &c. v. Campan, 35 Mich. 468; Murphy v. Chicago &o. 45 Iowa, 661 ; 
Mobile &c. v. Ashcraf t, 48 Ala. 15 ; Western Union &c. v, Quinn, 66 HI. 319; Park v. 
O'Brien, 23 Conn. 339; Jackson v. Commissioners &c. 76 N. C. 282; Laicher v. Kew 
Orleans &c. 28 La. An. 320; Harlan v. Qt. Louis &c. 65 Mo. 22; Erd v. St. Paul, 
22 Minn. 443; Macon &c. v. Baber, 42 Ga. 300; Memphis &c. v. Thomas, 51 Miss. 
637; Heame v. Company, 50 Cal. 482; Paducah &c. v. Hoehl, 12 Bush, 41; Jeffer- 
sonville &c. v. Lyon, 55 Ind. 477; Tuff v. Warman, 5 Com. B. N. S. 573; Davies 
V. Mann, 10 Mees. & W. 545. 

SBieseigal v. New York, 33 Barb. 429. 

* Brooks V, Buffalo ^c. 25 Barb. 600. See Housatonic &c. v. Knowles, 30 Conn. 

*Todd V. Old Colony &c. 3 Allen, 18. 

^ Gahagan v. Company, 1 Allen, 187. 


for injuries to health by reason of the escape of gas, it was held 
that if there was no want of care on the part of the company in 
laying the pipes, and they had no knowledge of the escape until 
notified, and then used reasonable means to ascertain where 
it was, and to stop it, the plaintiff could not recover for dam- 
ages sustained by him after the time when, in the exercise 
of due care on his part, he might have given notice to the 
defendants of the presence of gas in his house, or procured 
another place of residence.^ In a case where a woman took 
a position on the edge of a dock where she was likely to 
be forced into the water by passing teams, and several min- 
utes elapsed until she was pushed off by the striking of a 
heavy wagon against a dray near her, it was held contribu- 
tory negligence sufficient to defeat the action.' In cases of 
collisions of ships, it has been decided that the plaintiff cannot 
recover for injury done his ship by its being struck by defend- 
ant's ship, in consequence of any degree of improper manage- 
ment of the latter, if the former was improperly managed, and 
such management directly contributed in any degree to the ac- 
cident ; but if the plaintiff's negligence only remotely contrib- 
uted to the accident, the question is whether the defendant by 
ordinary care and skill might have prevented it.' In the case 
of collision of canal-boats, if both parties are at fault, but the 
collision happened in the night-time, partly from the want of 
lights on the injured boat, or from its being out of its proper 
place on meeting the other boat, the plaintiff c Jnnot recover.^ 
Where persons carelessly, or recklessly, or needlessly grope 
around unknown and dark localities, or newly constructed build- 
ings, or partially completed structures, and fall through trap- 
doors, etc., and are injured, they cannot recover.^ It seems that 
a person who makes a highway of a railroad track and is in- 
jured by a train, cannot maintain an action.^ Where a person 
attempts to cross a railroad track near a public highway, and 

1 Hunt V. Company, 1 Allen, 343. 
s Cunningham v. Lyness, 22 Wis. 246. 

< Dowell V. General &c. 5 El. & B. 194. 
4 Rathbun v. Paine, 19 Wend. 399. 

< Boulston V. Clark, 3 E. D. Smith, 306; Beatty v. Gllnyre, 16 Pa. 4S3; Bush o. 
Johnston, 23 Pa. 209; Owingji t;. Jones, 9 Md. 106; Ilott v, Wilkes, 8 Bam. & 
Aid. 304. 

Illinois C. B. B. v. Hall, 72 HL 222. 


drives upon the track without looking for approaching trains, 
and is injured, he cannot obtain damages, even though the rail- 
read company neglects to sound the alarm required by law, at 
the junction of railroads and highways.^ It has even been 
held that if one is seen on the track in time for him to get out 
of the way, the engineer has a right to assume he will do so, 
unless he has reason to suppose he is under some disability, or 
does not hear or understand the signals.^ 

Burden of proof . — ^In some States it is held that the burden 
of proof is upon the plaintiff to show that when the injury 
occurred he was in the exercise of proper care, and that the 
misfortune was not caused by his own negligence ; ^ but else- 
where it is established that the plaintiff is not required to give 
evidence of his own care and prudence at the time.^ The de- 
fendant must establish contributory negligence. 

§ 121. Where it is the plaintiff's duty to prevent an 
injnzy. — It is the duty of a person to use ordinary and reason- 
able care and means to prevent an injury and its consequences, 
and he can only recover damages for such losses as could not, 
by such care and means, be avoided. It is the plaintiff's own 
fault if he fails to use reasonable efforts, care, and diligence to 
protect himself from injury or loss ; and where he fails to do it 
he will not be permitted to say that the loss that might have 
been thus avoided was caused by the wrong of the defendant, 
for it is against the policy of the law, as well as common princi- 

1 Rockfoid Sec. 0. Byam» 80 HI. 528; Chicago &c. v, Harwood, 80 lU. 88; Ghi- 
cafco &c. V. Damerell, 81 111. 451; Railroad Co. v. Whitton, 13 Wall. 270; BeUe- 
fontaine &c. v. Snyder, 21 Ohio N. S. 671; Allyn v. Boston &c. 105 Mass. 77; 
Craig V. Company, 118 Mass. 431; Brown v. Company, 22 Minn. 165; Grippen v. 
Company, 40 N. Y. 34; Fletcher v. Company, 64 Mo. 484; Gerety v. Company, 
81 Pa. 274: Massoth f. Company, 64 N. Y. 524; Belief ontaine &c. v. Hunter, 33 
Ind. 365, and other cases cited. 

'2 Freeh r. Company, 39 Md. 574. 

sWAmer v. Company, 44 N. Y. 465; Murphy v. Chicago &c. 45 Iowa, 661; 
Galena &c. v. Dill, 22 111. 264; Wheelock v. Company, 105 Mass. 203; Vicksburg 
V, Hennessy, 54 Miss. 391; JeffersonvilLe &c. v. Lyon, 55 Ind. 477; Bigelow t;. 
Beed, 51 Me. 325; Lake Shore &c. v. Miller, 25 Mich. 274; Murphy v. Deane, 101 
Mass. 456; Dickey v. Company, 43 Me. 492; Dyer v. Talcott, 16 HI. 300; Trow v. 
Company, 24 Vt. 487; Park v. O'Brien, 23 Conn. 339; Button v. Company, 18 N. 
Y. 248. 

* Railroad Company v. Gladmon, 15 Wall. 401; Johnson v. Company, 20 N. Y. 
65; Smoot v, Wetumpka, 24 Ala. 112; Button r. Company, 18 N. Y. 248; Penn- 
sylvania Land Company v. Bentley, 66 Pa. 30; McQuilken v. Company, 50 CaL 
7; Wheeler v. Westport, 30 Wis. 392; Thompson v. Company, 51 Mo. 190; Cleve- 
land V, Bowan, 66 Pa. 393; St. Paul v, Kuby, 8 Minn. 154. 


pies of justice, to permit a party to reap any advantage from 
his own negligence or want of ordinary care, or from his own 
wrong.^ This applies whether the plaintiff's negligence con- 
tributed to the injury, or whether, by his subsequent negligence 
and failure to use reasonable means to prevent the consequence 
of the injury, the loss is greater than it otherwise would have 
been ; and in consonance with this principle, where it appeared 
that the defendant had in the month .of November broken down 
the plaijitiff 's fence, and the plaintiff failed to repair the same 
until the following May, and in the meantime cattle got in 
through the opening and destroyed a crop on the land planted 
the next year, and that the action was for the loss of the crop 
as well as for the expense of repairing the fence, Shaw, J., 
said : ^^ Suppose a man should enter his neighbor's field unlaw- 
fully, and leave the gate open ; if, before the owner knows it, 
cattle enter and destroy the crop, the trespasser is responsible. 
But if the owner sees the gate open, and passes it frequently, 
and willfully or obstinately, or through gross negligence, leaves 
it open all summer, and cattle get in, it is his own folly. So if 
one throw a stone and break a window, the cost of repairing the 
window is the ordinary measure of damages. But if the owner 
suffers the window to remain without repairing a great length 
of time after notice of the fact, and his furniture or pictures or 
other valuable articles sustain damage, or the rain beats in and 
rots the window, this damage would be too remote. We think 
the jury were rightly instructed that as the trespass consisted in 
removing a few rods of fence, the proper measure of damage 
was the cost of repairing it, and not the loss of the subsequent 
year's crop, arising from the want of such fence." ^ Where 
consequences have been aggravated by the gross neglect or 
the want of ordinary care on the part of the ^plaintiff, the de- 
fendant is not responsible for such damages. ^*It is ei^y to 
imagine some trivial misconduct or slight negligence which 
shall do no direct harm, but setting in motion some second 

^Douglas t;. Stevens, IS Mo. 362; lUinoia Ck>. v. Flnlgan, 21 HI. 646; Broom's 
Leg. Max. 279. 

sjiOker f7. Damon, 17 Pick. 284; Thompson v. Shattnck, 2 Met. 615; Flower r. 
Adam, 2 Taunt. 814; Miller v. Mariners' Church, 7 Greenl. 51; Hamilton v. Mo- 
Pherson, 28 N. Y. 72; Davis v. Fish, 1 Greene, 407; Chase v. N. Y. &c. 24 Barb. 
273; Hassa v. Junger, 15 Wis. 596. 


agent shall move a third, and so until the most disastrous con- 
sequences shall ensue. The first wrongdoer, unfortunate rather 
t^an seriously blamable, cannot be made answerable for these 
consequences. He shall not answer for those which the party 
aggrieved has contributed by his own blamable negligence or 
wrong to produce— or for any which such party by proper dili- 
gence and ordinary care might have prevented." ^ In an action 
against a county upon a quantum meruit^ for work done in the 
erection of a court.-housb, the defendant for cross-claim set up 
damages alleged to have been sustained by defective work and 
materials. There was evidence tending to show that, owing to 
the imperfect manner in which the belfry was constructed, the 
roof leaked, and this caused the plastering, some time afterward, 
to fall o£P, and that it would cost one hundred dollars to make 
good the damage by re-plastering the same. The plaintiff, on 
the trial, asked the court to give the following instructions : 
**' That if the defendant could have protected itself from dam- 
age which would naturally result from the alleged defects in 
the construction of said court-house, it was bound to do so, if 
practicable, at a moderate expense or by ordinary efforts, and 
it can charge the plaintiff for such expense and efforts only, and 
for the damages which could not be prevented by the exercise 
of due diligence." The instruction was refused in the court 
below, but on appeal, Dillon, J., said : ^^ It is our opinion that 
the instruction asked was pertinent, and the case one to which 
the doctrine asserted (which should be cautiously applied) was 
applicable." ^ And in an action against a city for damages to 
the plaintiff's lot, in consequence of a flow of water thereon, 
caused by the negligent manner of constructing the gutters of 
a street, it was held that they could not recover if it appeared 
that they could have prevented the injury by the use of or- 
dinary means or at a moderate expense, and that an instruction 
that the jury must find for the plaintiffs, unless a slight expense 
and slight effort would have prevented the injury, was erroneous.^ 

1 Harrison v. Berkley, 1 Strbb. 648; Walker v. Ellis, 1 Sneed. 515; Davis v. 

Fish, 1 Greene, 406; Sto^r v. Bluehill, 51 Me. 430; Dorwin v. Potter, 5 Den. SOS. 
s Mather v. Butler County, 28 Iowa, 253. ^ 

• Simpson V. Keokuk, 34 Iowa, 253; Cincinnati Co. v, Rogers, 24 Ired. 103; 

Heavilon v, Kramer, 31 Ind. 24; State v. Powell, 44 Mo. 436; Dufort v, Abadie, 

23 La. An. 280; MUler v. Roy, 10 La. An. 231. 


§ 122. Contributory negligence on part of servants. 

As to the question whether the master is liable for injuries 
occurring to the servant through his negligence relating to the 
business in which the servant is engaged, or the instrumentali- 
ties connected therewith, where the servant has knowledge of 
such negledt and defects, the better opinion, Mr. Field con- 
siders to be, that if a party engages in a business that is hazard- 
ous, or to use instruments or machinery that are defective, al- 
though these facts may be known to the master, and there is 
gross negligence in him in this respect, still, if the servant, with 
full knowledge thereof, or after notice of the danger to which 
he is thereby exposed, continues in the employment and is 
thereby injured, he contributes to his own injury ; ^ that the serv- 
ant is as much bound to take care of himself as the master is to 
take care of him, and that if he possesses knowledge of these mat- 
ters he must refuse the employment or be held to have assumed 
the risks incident to the business, and cannot recover for inju- 
ries resulting therefrom.* The doctrine, however, would not 
apply where the service has been induced, entered upon, or con- 
tinued by a promise on the part of the master to remedy the 
defects or remove the cause from which the injury proceeds.* 
The general rule is the same as in other cases of contributory 
negligence, a master is not liable if the servant's own negligence 
contributed with that of the plaintiff in producing the injury.^ 
There is or may be, under certain circumstances, an additional 

^ Damages, sec. 185. 

3 Greenleaf v. Company, 29 Iowa, 14; Hutchinson v. Company, 5 Ezch. 343; 
Illinois Company v. Jewell, 46 HI. 99; Frazier v. Company, 38 Pa. 104; Mad 
Elver Company t*. Barber, 5 Ohio St. 541 ; McMillan v. Company, 20 Barb. 449; 
Priestly v. Fowler, 3 Mees. & W. 1 ; Seymour v, Maddox, 6 £ng. Ij. & £. 266; 
Illinois Company v. Love, 10 Ind. 554; Harris t;. Northern Company, 20 N. Y. 
235; Moss v. Johnson, 22 111. 642; Alsop t\ Yates, 2 Hurl. & N. 768; (Griffiths v. 
Gidlow, 3 Hurl. &; N. 648; Pierce on Railways, 294; Shear. & B. on Neg. sen. 87; 
Hay den v. Company, 29 Conn. 548; Hard t;. Vermont Company, 32 Vt. 473; War- 
ner V. Company, 39 N. Y. 468; Laning v. Company, 49 N. Y. 521; Buzzell t;. Com* 
pany, 48 Me. 113; Fifleld i;.*Company, 42 N. H. 225; Wright v. Company, 25 K. 
Y. 562. 

s Greenleaf v. Company, 29 Iowa, 14; Laning v. Company, 49 N. Y. 521. And 
see Greenleaf v. Company, 33 Iowa, 52. ^ 

^Tjiompson v. Company, 54 Ga. 509; Bums v. Company, 101 Mass. 50; Chicago 
&c. V. Donahue, 75 111. 106; Illinois Cent. B. B. Co. v, Patterson, 69 111. 650; 
Western &c. v. Adams, 55 Ga. 279; Mulherrin v. Delaware &c. 81 Pa. 366; Hay- 
den V, Company, 29 Conn. 548; Yicksburg &c. v. Wilkins, 47 Miss. 404. 


burden cast upon the servant to report dangers to the master, 
and a failure to comply with this duty may amount to contribu- 
tory negligence.^ The burden of proof to establish the master's 
negligence is usually upon the plaintiff.^ 

§ 123. Contributive negligence — Injuries to children. 

The negligence of the parent, or guardian, or person having the 
custody of a young child, in allowing it to fall into danger, is 
often deemed the negligence of the child, so as to affect the child 
with contributory negligence, where the action would be barred 
against the child. A railroad company defendant, by the neg- 
ligence of their servants and the contributory negligence of a 
person in charge of the child, who was too young to take care 
of itself, injured the child, who was plaintiff. They were held 
not liable.^ But there are authorities the other way.^ If the 
child itself be guilty of negligence, and is of an age or capacity 
to be guilty of negligence, there can be no recovery. Whether 
the child can be guilty of personal negligence is a question of 
fact, depending upon his age and ability to take care of him- 
self.^ In the case of a child too young to take care of itself, it 
is said that if the negligence of the parent or person in charge 
were properly contributory, the defendant is not liable, as the 
plaintiff cannot prove that the defendant caused the injury.^ 
The parent's or guardian's negligence is imputable to the child 

^Ladd V. Company, 119 Mass. 412; S. G. 20 Am. B. 331; Sullivan v. Company, 
9 Bush, 81; Malone v. Hawley, 46 Cal. 409; St. Louis &c. Company v. Britz, 72 
HI. 256; Le Clair v. Company, 20 Minn. 9; Patterson v. Company, 76 Pa. 389; S. 
C. 18 Am. B. 412; Davis o. Comi)any, 20 Mich. 105; Belair t;. Company. 43 Iowa, 

SQilman v. Company, 10 Allen, 233; Hildebrand v. Company, 47 Ind. 399; 
Wright V. Company, 25 N. Y. 662. 

» Waite V, Northeastern By. Co. El. B. & E. 719. 

^ Belief ontaine & I. B. Co. v. Snyder, 18 Ohio St. 399: North Penn. B. Co. v. 
Mahoney, 57 Pa. 187; Louisville Canal Co. v. Murphy, 9 Bush, 522; BfObinson v. 
Cone, 22 Vt. 213. 

* Lynch v. Nurdin, 1 Q. B. 29; Bronson v, Southberry, 37 Conn. 199; Lynch v. 
Smith, 104 Mass. 52; Crissey t;. Company, 75 Pa. 83; Bailroad v. Oilman, 15 
Wall. 401; Schmidt v. Milwaukee &c. 23 Wis. 186;' Philadelphia &c. v. Hassard, 
75 Pa. 367; Dowd v. Chicopee, 116 Mass. 93. In some cases it has been decided 
that the same discretion is required of a child as of an adult. (Hatfield v. 
Boper, 21 Wend. 615; Pittsburgh &c. v. Vining, 27 Ind. 513; Burke v. Company, 
49 Barb. 529; Brown v. Company, 58 Me. 384; Hoveysberger t;. Company, 2 Abb. 
App. Dec. 378; Lygo v. Newbold, 9 Ex. 302.) 

• Ihl V. Forty-second St. B. Co. 47 N. Y. 317. 


when it properly contributed to the injury, because the defend- 
ant cannot be shown to have caused the misfortune ; and so of 
the negligence of an older brother or sister of the child, or of a 
stranger having the temporary charge of the child.^ In some 
cases it is held that it is necessary for the plaintiff to prove that 
he was exercising due care when the misfortune happened. In 
others, that the defendant must prove that the plaintiff was 
guilty of contributory negligence.^ 

§ 124. Injiiries to senrants through negligence of mas- 
ter. — A workman who engages in a dangerous employment 
takes it with all its ordinary risks. The law does not impose 
upon the master the obligation of taking more care of the ser- 
vant than he may reasonably be expected to take of himself. 
The servant is not bound to risk his safety in the service of his 
master, and may decline it. The master, for instance, is not re- 
sponsible for injuries sustained by his servant through the 
viciousness of a horse which the latter is employed to groom ; 
or through the breaking down of a vehicle which he is employed 
to drive ; or through the use of dangerous machinery which 
the servant professes to understand, and which he has know- 

1 Mulligan v. Curtis, 100 Mass. 512. 

s According to some authorities, if a person becomes identified with a common 
carrier, the latter's negligence is imputed to that person, because it is said that 
•he becomes so identified in selecting the particular mode of conveyance when 
he might have chosen some other. (Armstrong v. Company, L. R. 10 Ex. 47; 
Thorogood v. Bryan, 8 Com. B. 115; Lockhardt v, Lichtenthaler, 46 Pa. 151; 
Puterbaugh v. Beasor, 9 Ohio St. 484; Smith v. Smith, 2 Pick. 621.) But this 
doctrine has been disapproved of in several cases, (The Milan, 1 Lush. Adm. 
388; Hay v. Le Neve, 2 Shaw, Scotch Appeals, 396; Chapman v. Company, 19 N. 
Y. 341; Webster v. Company, 38 K. Y. 260; Danville &c. v, Stewart, 2 Met. Ky. 
119.) and the same conflict exists upon the subject of a parent or guardian of 
a young child allowing the child to fall into danger: the former's negligenoe has 
been imputed to the latter, and it Is placed upon the footing of contributory neg- 
ligence on the part of the child so as to defeat recovery. ( Belief ontane &o. v. 
Snyder, 18 Ohio St. 399; Glassey v, Hestonville, 57 Pa. 172; Smith v, O'Connor, 
48 Pa. 218; Boland v. Company, 36 Mo. 484; Karr v. Parks. 40 CaL 188; Pitts- 
burgh &c. V. Caldwell, 74 Pa. 421; Bronson v. Southbury, 37 Conn. 199; Bobin- 
son V, Cone, 22 Vt. 213; Nor^h &c. v. Daly, 26 Conn. 591; Chicago &c. v. Greg- 
ory, 58 lU. 226; Ihl v. Porty-second St. B. Co. 47 N. Y. 317.) But this doctrine 
has likewise been frequently disapproved or denied. (Waite v. Company, EL B. 
& E. 719; Lafayette &c. v. Huffman, 28 Ind. 287; Lynch v. Smith, 104 Mass. 52; 
Hatfield v, Boper, 21 Wend. 615; Callahan v. Bean, 9 Allen, 401; Chicago v, 
Starr, 42 111. 174; Brown v. Company, 58 Me. 384; Pittsburgh &c. v. Yining, 27 
Ind. 513.) 


inglj and voluntarily undertaken to use ; or for the dangers of 
mounting scaffolds, or unfinished staircases, or landings, when 
the servant can see the risk for himself.^ In accot'dance with 
this doctrine, where the master's coach broke down through the 
negligence of a coachmaker in making it, it was held that he had 
no remedy for the injury, either from the master or the coach- 
maker. Bolfe, B. observed : ^^ It is no doubt a hardship upon 
the plaintiff to be without a remedy, but by that consideration 
we ought not to be influenced." There would be no end of ac- 
tions if we were to hold that a person having once done a piece 
of work carelessly should, independently of honesty of purpose, 
be fixed with liability in this way by reason of bad materials or 
insufficient fastening. 

§ 125. Injuries to Bervants — ^Exemption of master. — 

A master is not responsible for the dangerous state of his 
premises if those dangers are known to the servant, and the 
latter has accepted the employment knowing the attendant 
risks, and having an opportunity of guarding against them by 
his own vigilance and care.^ Where plaintiff alleged he had 
been hired by defendant to perform at the latter's theater, and 
that there was a hole in the floor of the stage where the plaintiff 
had to pass in performance of his duty as a performer, and that 
it was the duty of the defendant to light the floor sufficiently so 
as to prevent such accidents, it was held that no such duty was 
cast upon defendant.^ If the servant wishes the premises kept 
in any particular state with regard to lighting and fencing, he 
must provide for it by express contract. And where a workman 
is employed in the use of dangerous machinery, furnished by 
the employer, and is or professes to be acquainted with the use 
of the machinery, and the necessary care to guard against acci- 
dent, and yet sustains injury from his own want of care and 
caution in the use of it, he has no ground of action against his 

i Patterson V. Wallace, 1 Macq. 751; Sidpp v. Company, 9 Ex. 223; Dynen v. 
Leach, 26 Law J. Ex. 221; Assop v. Yates, 2 Hurl. & N. 770; 27 Law J. Ex. 166; 
Griffiths t;. Gidlow, Ihid. 404; Coughtry v. Company, 56 N. Y. 124; Potts v. 
Plunkett, 9 1. B. C. L. 290. 

s McGlynn v. Brodie, 31 Cal. 37a 

* Seymour t7. Maddox, 16 Q. B. 332; Bolch v. Smith, HnrL & K. 736; 31 Law J. 
Q. B. 201; Potts v. Plunkett, 9 1. C. L. B. 290. But see By an v. Fowler, 24 K. Y. 


employer.^ As the employer does not undertake with his em- 
ployees for the sufficiency and safety of the materials and imple- 
ments f umrehed for the work, if an injury to a servant arises 
from a defect or insufficiency in the machinery or implements 
furnished to the servant by the master, knowledge of the defect 
or insufficiency must be brought home to the master, or proof 
given that his ignorance arose from his own negligence or want 
of care, or in other words, that he either knew or ought to have 
known of the defects.^ If a servant sustaining an injury 
through defects in the machinery or conveniences furnished by 
his employer, has the same means of knowledge or the same 
knowledge of the defects as his employer, he cannot sustain an 
action for the injury, but will be held to have voluntarily 
assumed the risks.^ But if the master allows defective machin- 
ery to be handled by his workmen, he having knowledge of the 
defects and they being ignorant of them, the rule is otherwise. 
The reason of this immunity in favor of t£e master has been 
said to be that an opposite doctrine would subject employers to 
unreasonable and often ruinous responsibilities, thereby embar- 
rassing business, and encouraging the servant to omit the dili- 
gence and caution which he should exercise on behalf of his 
master to protect him against the misconduct or negligence of 
others who serve him ; and which diligence and caution, while 
they protect the master, are a much better security against 
injuries to the servant by the negligence of others engaged 
under the same master, than any recourse against the master for 
damages could possibly afford. It makes it the special interest 
of the servant to protect others since it is only in so doing that 
he protects himself.^ And the servant assumes not only the 

1 Dynen v. Leach, 26 Law J. Ex. 221; Baiton's HiU Goal Co. v. Reid, 3 Macq. 
2M. See Watling v. Oastler, Law R. 6 Ex. 73. 

* Keegran v. Company, 8 N. Y. 175; BuzzeU v. Company, 48 Me. 117; Wright t7. 
Company, 25 N. Y. 562; Hey den v. Company, 29 Conn 548; Griffiths v. Godson, 
3 Hen. & M. 213; McGlynn v. Brodle, 31 Cal. 376; Combs v. Company, 102 Maas. 
572; Frazer v. Company, 38 Pa. 104; Mad River Company v. Barber, 5 Ohio St. 
541; Priestly v. Fowler, 3 Mees & W. 1; Hutchinson v. Company, 5 Exch. 343. 

* Cases just cited, and Williams v. Clough, 3 Hen. & M. 213; Kroy v. Com- 
pany, 32 Iowa, 357; Ryan v. Fowler, 24 N. Y. 410; Wonder v. Company, 32 Md. 
411; Noyes v. Smith, 28 Vt. 59; Patterson v. Wallace, 1 Macq. H. L. Cas. 748; 
Walsh V. Company, 110 Mass. 23; Mellors v. Shaw, 1 Best & S. 437; Coombs v. 
Company, 102 Mass. 572. 

* Priestly v. Fowler, 3 Mees. & W. 1; Lawler v. Company, 62 Me. 463; S. C. 16 
Am. B. 492; Hanrathy v. Company, 46 Md. 280; Illinois Co. v. Cox. 21 111. 20. 


ordinary risks and perils of the service, but also such others as 
are apparent to ordinary observation.^ In a case in Connecticut 
it appeared that the employee was acquainted with' the hazards 
of the business in which he was engaged, and with the kind of 
machinery made use of in carrying on the business, and the 
court said : ^^ He must be held to have understood the ordinary 
hazards attending his employment, and tlierefore to have volun- 
tarily taken upon himself this hazard when he entered into the 
defendant's service. Every manufacturer has a right to choose 
the machinery to be used in his business, and to control that 
business in the manner most agreeable to himself, provided he 
does not thereby violate the law of the land. He may select 
his appliances, and run his mill with old or new machinery, just 
as he may ride in an old or new carriage, navigate an old or new 
vessel, occupy an old or new house, as he pleases. The em- 
ployee, having knowledge of the circumstances on entering his 
service for the stipulated reward, cannot complain of the pecu- 
liar taste and habits of his employer, nor sue him for damages 
sustained in and resulting from that peculiar service."^ So, 
an employer is not bound to change his machinery in order to 
apply every new improvement or supposed improvement, and 
an employee who consents to operate the machinery already 
provided by the company,, knowing its defects, does so at his 
own risk.^ And on the same principle of acquiescence, if an 
employee knows that there is insufficient assistance rendered 
him, and continues in the business without objection, the master 
is not liable to him.^ A master has on similar grounds been ex- 
empted from liability for exposing his servant to poisonous 
exhalations.^ The qualifications or exceptions to the rule, as in 
the cases of infants or persons of immature years, and persons 
Ignorant of the dangers to which they are exposed, in the cases 


1 Gibson v. Company, 63 N. Y. 449; S. C. 20 Am. B. 552; Baltimore Co. v. State, 
41 Md. 268. 

* Hajden v. Company, 29 Conn. 548; Williams v. Clough, 3 Hurl. & N. 258; 
Dynan v. Leach, 26 Law J. Ex. 221; S. C. 40 Eng. L. & Eq. 491. 

* Wonder v. Company, 32 Md. 411; Combs v. Company, 102 Mass. 572; S. C. 3 
Am. B. 506. 

^ Skipp V. Company, 9 Ex. 223. 

< West V. Coiupany, 63 III. 545. See, also, Gibson v. Company, 63 K, Y. 449; S. 
C. 20 Am. 552; St. Louis &c. v. Britz, 72 HI. 256; Fort Wayne &c. v. Giidersleeye, 
33 Mich. 133; Belair v. Chicago &c. 43 Iowa, 662; Ladd v. Company, 119 Mass. 
412; S. C. 20 Am. B. 552. 


of servants commanded to go into exceptionally dangerous 
localities, or to subject themselves to risks which they had no 
reason to expect, or to consider as being within their employ- 
ment, it is not our purpose to discuss. As in these instances the 
master is generally held liable, it is not within the plan of this 
work. The reader is referred to the various works on torts for 
full discussions of the subject.^ And the same remark will 
apply to cases where the master has not exercised ordinary care 
in providing suitable and safe machinery ; or in making use of 
that which he knows to be defective, without explaining the de- 
fects to his servant ; or where he fails to use ordinary diligence 
in discovering defects ; to cases where he employs other servants 
who are wanting in requisite skill, care, or prudence ; or where 
he continues such persons in his employ after their unfitness is 
known to him, or where by the exercise of ordinary care it 
might have been known, etc. It is to be observed, however^ 
that a master does not by any implied contract warrant the 
safety of his machinery or his appliances, but he is liable only 
for the want of ordinary care in their selection and use.^ This 
is settled law. 

A few more instances will illustrate the general rule. A per- 
son was employed as a common laborer by the defendant, who 
was a brewer, and was engaged in cleaning casks by a steam 
apparatus, the use of which was explained to him. After he 
had been so employed for some days, he was injured by the ex- 
plosion of a cask, caused by the pressure of steam. There was 
evidence that the apparatus was unsafe, because of the omission 
of a certain valve or gauge ; but it was not proved that the de- 
fendant knew or had reason to believe that it was dangerous in 
its actual condition. The defendant was held not liable.^ So 
where an employee in a foundry worked with or near an unsafe 
piece of machinery, knowing it to be unsafe, he was held to 
have assumed the risk of the employment.* "Where a laborer 

1 See, especially, Cooley on Torts, pp. B53-n5G0. 

< Indianapolis &c. v. Flanigan, 77 111. 365; Shanny v. Androsooj^gin Mill, 66 
Me. 420; Ford v. Company, 110 Mass. 240; S. C. 14 Am. B. 598; Ladd v. Ck>m- 
pany, 119 Mass. 412; S. C. 20 Am. R. 331; Fort Wayne &c. v. Gildersleeve, 33 
Mich. 134, and cases cited. 

* Loonan u. Brockway, 3 Rob. 74. ' 

<McGlynn v. Brodie, 31 Cal. 376. 


was killed by the fall of a weight, which he was raising by 
means of an engine to which he attached it by fastening on to 
it a clip, and the clip had slipped off, it was held there was no 
case to go to the jury, although it was shown that another and 
safer mode of raising the weight was usual, and had been re- 
jected by the defendant's orders.^ So where a servant volunta- 
rily used an unsafe hook.^ In the case of railroad companies 
there seems to be no implied warranty as between employer and 
employees that the rolling-stock and fixtures of the road are 
complete and safe ; but if the employer, with knowledge of a 
defect, suffer the road to be run, the employee being ignorant 
of the defect, or if, knowing it, the employer gives special direc- 
tions as to operating, a compliance with which leads to an acci- 
dent, he is liable, if such negligence be alleged and proved.^ 
The plaintiff should also allege that he used due care and dili- 
gence in the inspection and use of the cars and machinery while 
in his charge and under his direction. A conductor must use 
ordinary skill and judgment, not only in the management of the 
train, but also in the inspection of the machinery and cars ; and 
if he is injured by the want of it, or by an insufficiency which 
he might have known by reasonable diligence, or did know, the 
company is not liable. And if such injury is caused by latent 
defects, not discoverable by ordinary care either by the com- 
pany or the conductor, the latter still has no remedy. In case 
of an insufficiency of hands to run the road, if the conductor 
ruQs the train without the proper number, when he might refuse 
to run it, this amounts to a waiver, and he cannot claim dam- 
ages from the company.^ An engineer upon a railroad, who 
has received an injury resulting from a defect in the locomotive 
of which he had charge, and from deficient fences, etc., must al- 
lege and prove actual notice to the company of the defects and 
deficiencies;^ and one having a contract with a company as em- 
ployee, with full knowledge of the condition and management of 
the road, cannot recover for injuries suffered in passing over it.^ 

1 Dynen v. Leach, 40 Eng. Law & Eq. 491. 
a Griffiths v. Gidlow, 3 Hurl. & N. 648. 
^Indianapolis &c. v. Love, 10 Ind. 554. 
<Mad River &c. v. Barber, 6 Ohio, (N. S.) 641. 
6 McMillan v. Saratoga &c. 20 Barb. 449. 
«Mo8S t7. Johnson, 22 HI. 633. 


A railroad corporation exercising reasonable care in provid- 
ing and using suitable engines and tenders is not liable for an in- 
jury occasioned by a defect therein to a workman employed by 
them while being carried over their road without paying fare ; 
so a carpenter employed by the day by a railroad company to 
work on the road, and carried by the cars to the place of work, 
without paying fare, cannot maintain an action against the com- 
pany for injuries occasioned while being so carried, by a hidden 
defect in an axle, the failure to discover which was occasioned 
by the negligence of the servants of the company, whose duty 
it was to keep in repair the cars, axles, etc. 

§ 126. Injuries to senrants from their feUow-senrants. 

In the absence of personal negligence on the part of the master, 
he is not liable for injuries sustained by a servant by reason of 
the negligence of a fellow-servant. In the absence of evidence 
showing notice of the fellow-servant's incompetency, the plaintiff 
cannot recover.^ This is on the theory that he who engages in 
the employment of another for the performance of specified du- 
ties and services for compensation, takes upon himself the nat- 
ural and ordinary risks incident to the performance of such 
services, and the negligence of fellow-servant« is one of those 
risks.^ The term " fellow-servant " includes all who serve the 
same master, work under the same control, derive authority and 
compensation from the same source, and are engaged in the 
same general business, though in different grades and depart- 
ments of it.' An engineer and a switchman have been held 
fellow-servants ; so have brakemen on different trains of the 
same railroad ; so have a workman in a factory, and the foreman 
and superintendent; and so with a carpenter employed by a 
railroad to repair fences, and an engineer of the same company.^ 

1 Davis t). Company, 20 Mich. 105. Bee, also, Ford t;. Company, 110 Mass. 240. 
Beaulieu v. Portland, 48 Me. 291; Morgan v. Vale &c. Law B. 1 Q. B. 149; Weger 
V. Company, 55 Pa. 460; Davis v. Company, 20 Mich. 106; Bartonshill Coal Co. v 
Reid, 3 Macq. 266, 900. 

s Oilman v. Company, 10 Allen, 233; Priestly v. Fowler, 3 Mees & W. 1. 

' Wonder v. Company, 32 Md. 411; Story on Agency, sec. 453d, note, Green's 

* Bigelow on Torts, citing Farwell v. Company, 4 Met. 49; Hajres v. Company, 
8 Cush. 270; Feltham v, England, Law B. 2 Q. B. 33; Albro v. Agawam, 6 Cash. 
75; Beaver t;. Company, 14 Gray, 466. See Gillshannon t;. Company, 10 Cash. 


Where fellow-servants are employed by the same master in a 
common employment, the master is not liable for injuries to one 
caused by the negligence of another, if the master has taken 
due care not to expose the servant to unreasonable risks,^ and 
has exercised reasonable care in the selection of proper servants.^ 
The principle is that when a servant undertakes a certain em- 
ployment he undertakes all the known and ordinary risks of that 
employment, and negligence on the part of fellow-servants is 
supposed to be one of them, when the latter are* acting in dis- 
charge of their duties.^ If both master and servant had notice 
or equal knowledge or means of knowledge of the incompetency 
of a fellow-servant, the servant is presumed to have accepted 
the service with this additional risk.^ If the fellow-servant is 
incompetent, and the master knew it and the other servant did 
not, the rule changes, and the master is liable, whether the 
incompetency existed at the time of hiring, or came afterwards, 
if the master knew it ; but if competent when hired, knowledge 
of subsequent incompetency must be brought home to the mas- 
ter to render him liable.^ 

228; Lawler v. AndroscrB. Co. 62 Me. 463; Hilliard v. Richardson, 3 Gray, 349; 
Weger v. Company, 55 Pa. 460; Morgan v. Company, L. R. 1 Q. B. 149; Colum- 
bna &c. V, Arnold, 31 Ind. 174; LoaisTille &c. t;. Cavens, 9 Bosh, 559. 

1 Chicago Company t;. Murphy, 53 HI. 396; Russell v. Company, 17 K. Y. 134; 
Coon V, Company, 5 N. Y. 492; Lanning v. Company, 49 N. Y. 521; Murray v. 
Company, 1 McMull. 385; Hutchinson v. Company, 5 Ex. 353; Hayes v. Company, 
3 Cosh. 270; Wiggett v. Fox, 11 Ex. 837; 25 Law J. Ex. 188; Albro v. Company, 6 
Cush. 75; Searle v. Lindsay, 11 Com. B. N. S. 429; 31 Law J. C. P. 106; King v. 
Company, 9 Cush. 113; Hall v. Johnson, 34 Law J. Ex. 222; Gilshannon v. Com- 
pany, 10 Cush. 228; Wright v. Company, 25 N. Y. 562; Sherman v. Company, 17 
N. Y. 153; Farwell v. Company, 4 Met. 49; Leahey v. Company, 10 Mich. 199; 
Brown v. Maxwell, 6 Hill, 592; Brickner v. Company, 49 K. Y. 672; Flike v. Com- 
pany. 58 N. Y. 549. 

3 Chapman v. Company, 55 K. Y. 579; Hofnagle v. Company, 55 N. Y. 606; 
Tarrant v. Webb, 18 Com. B. 806; Wilson v. Merry, Law R. 1 Scotch & Diy. App. 
326; Warner v. Company, 39 N. Y. 468; Cleghom v. Company, 56 N. Y. 44. 

8 Morgan v. Company, 33 Law J. Q. B. 260; Law R. 1 Q. B. 149; Boldt v. Com- 
pany, 18 N. Y. 432. 

^Unless the master has given special directions, or has promised to amend 
the defect, or held out some such inducement for the servant to remain. (Buz- 
zell V. Company, 48 Me. 113; Laning v. Company, 49 N. Y. 521; Davis v. Com- 
pany, 20 Mich. 106; Hayden v. Company. 29 Conn. 548; Indianapolis &c. v. Love, 
10 Ind. 656; Thayer v. Company, 22 Ind. 29; Wright v. Company, 25 N. Y. 562; 
Chicago &c. v. Jackson. 55 111. 492; Wonder v. Company, 32 Md. 411; Mad River 
&c. V. Barber, 5 Ohio St. 562; Frazer v. Company, 38 Pa. 104.) 

( Laning v. Company. 49 N. Y. 521 ; Illinois Central R. R. Co. v. Jewell, 46 111. 
99; Davis v. Company. 20 Mich. 106; Chapman r. Company, 55 N. Y. 579. 

D. A. I.— 17. 


A railway company has been held not responsible for an injury 
to one of their own servants by a collision on their railway 
caused by the negligence of another of their servants, where 
they would undoubtedly have been liable, had the injured .per- 
son been a mere passenger traveling for hire.^ The fellow-serv- 
ants, however, must be engaged under the same general em- 
ployer in order to exempt the master from liability.^ The prin- 
ciple that when a master uses due diligence in the selection of 
competent and- trusty servants, and furnishes them with suitable 
means to perform their services, he is not liable to one fellow- 
servant for an injury received by the latter through the care- 
lessness of another, while both are engaged in the same em- 
ployment, was laid down in the case of Farwell v. The Boston 
& Worcester Railroad Corporation, 4 Met. 49. In that case a 
railroad company employed a generally careful and trustworthy 
switch-tender to tend the switches on their road. After he had 
been for some lime in their service, they employed an engineer 
to run a passenger train of cars on the road — the engineer 
knowing the character and employment of the switch-tender. 
The engineer, (the plaintiff) while in such employment, ran his 
engine off at a switch, which had been left ixl a wrong condition 
by the switch-tender, and was injured. The case was decided by 
Shaw, C. J., in 1849, and he said that it was then a new ques- 
tion in the court. He referred to the general liability of the 
master for the acts of his servant when a stranger is injured 
during the employment of the servant, under the maxim of 
respondeat superior ; but he asserted that this could not apply 
to the case of a servant bringing his action against his own em* 
ployer to recover damages for an injury arising in the course of 
that employment, where all such risks and perils as the employer 
and servant respectively intend to assume and bear may be reg- 
ulated by the express or implied contract between them, and 
which, in contemplation of law, must be presumed to be thus 
regulated. The basis of such an action, if it could be main- 

1 McEnery v. Waterford, 8 1. B. G. L. 312; Tunney v. Company, LawB. 1 Com. 
P. 291; BuBsell t7. Company, 17 N. Y. 194; Wegei t;. Company, 06 Pa. 460; Hando 
V. Bailroad, L. B. 2 Q. B. 439n. 

> Abraham v. Beynolds, 6 Hurl. & N. 149; Waller v. Company, 32 Law J. Ex. 
206; liOvegTOve v. Company, 33 Law J. Com. P. 329; Connolly v. Davidson, 16 
Minn. 619; Gillenwaier v. Company, 6 Ind. 340; Smith v. Company, 19 N. Y. 127. 


tained, he remarked, must be, in the absence of express contract, 
some implied contract of indemnity, some implied promise arising 
out of the relation of master and servant, and from the duty of 
the master to be responsible to each person employed by him in 
the conduct of every branch of business where two or more' 
persons are employed, to pay all damage occasioned by the 
negligence of every other person employed in the same service. 
This would be in the nature of the liability of a common car- 
rier. But the general rule, resulting from considerations as well 
of justice as of policy, was declared to be that he who engages 
in the employment of another for the performance of specified 
duties and services for compensation, takes upon himself the 
natural and ordinary risks and perils incident to the perform- 
ance of such services, and in legal presumption the compensa- 
tion is adjusted accordingly. ^^And we are not aware of any 
principle which should except the perils arising from the care- 
lessness and negligence of those who are in the same employ- 
ment. These are perils which the servant is as likely to know 
and against which he can as effectually guard as the master. 
They are perils incident to the service, and which can be as 
distinctly foreseen and provided for in the rate of compensation 
as any others. To say that the master shall be responsible be- 
cause the damage is caused by his agents, is assuming the very 
point which remains to be proved. They are his agents to some 
extent and for some purposes ; but whether he is responsible in 
a particular case for their negligence is not decided by the single 
fact that they are for some purposes his agents. It seems to 
be now well settled, whatever might have beon thought formerly, 
that underwriters cannot exeuee themselves from a loss by one 
of the perils insured against, on the ground that the loss was 
caused by the negligence or unskillfulness of the officers or 
crew of the vessel, in the performance of their various duties as 
navigators, although employed and paid by the owners, and, in 
the navigation of the vessel, their agents." ^ ^\ I am aware," con- 
tinued the Chief Justice, ^^ that the maritime law has its own 
rules and analogies, and that we cannot always safely rely upon 
them, in applying them to other branches of law. But the rule 
in question seems to be a good authority for the point that per- 

1 Gopeland v. Company, 2 Met. 440, and cases cited. 


sons are not to be responsible in all cases for the negligence of 
those employed by them." Upon considerations of public policy, 
also, the rule adopted was upheld. ^^ Where several persons are 
employed in the conduct of one common enterprise or under- 
faking, and the safety of each depends much on the care and 
skill with which each shall perform his appropriate duty, each 
is an observer of the conduct of the others, can give notice of 
any misconduct, incapacity, or neglect of duty, and leave the 
service of the common employer if the latter will not take such 
precautions and employ such agents as the safety of the whole 
party may require. By these means the safety of each will be 
much more efEectually secured than could be done by a resort 
. to the common employer for indemnity in case of loss by the 
negligence of each other." Nor did it alter the case that the 
person injured and the servant committing the injury were in 
difEerent departments of duty, at places where neither could 
control or influence the conduct of each other. ^' When the 
object to be accomplished is one and the same, when the em- 
ployers are the same, and the several persons employed derive 
their authority and their compensation from the same source, it 
would be extremely difficult to distinguish what constitutes one 
department and what a distinct department of duty. It would 
vary with the circumstances of every case. If it were made to 
depend upon the nearness or distance of the persons from each 
other, the question would immediately arise how near or how 
distant must they be to be in the same or different departments? 
In a blacksmith shop, persons working in the same building at 
different fires may be quite independent of each other, though 
only a few feet distant. In a ropewalk, several may be at work 
on the same piece of cordage at the same time at many hund- 
red feet distant from each other, and beyond the reach of sight 
and voice, and yet acting together." The master is not exempt 
from liability because the servant has better means of providing 
for his safety when he is employed in immediate connection with 
those from whose negligence he might suffer ; but because the 
implied contract of the master does not extend to indemnify the 
servant against the negligence of any one but himself, and he 
is not liable in tort, as for the negligence of his servant, because 
the person suffering does not stand toward him in the relation 


of a stranger ; but is one whose rights are regulated by contract, 
expressed or implied. As the exemption of the master, there- 
fore, from liability for the negligence of a fellow-servant, does 
not depend exclusirely upon the consideration that the servant 
has better means to provide for his own safety, but upon other 
grounds, the separation of the employment into different depart- 
ments cannot create that liability when it does not arise from 
express or implied contract, or from a responsibility created by 
law to third persons and strangers for the negligence of a ser- 

These general principles may be considered settled law,^ al- 
ways provided that the master himself is not guilty of negli- 
gence in employing unfit persons or in retaining unfit servants 
after notice of their unfitness.^ Of course, in the absence of 
contributory negligence, the master is liable for his own negli- 
gence. So, also, it is to be understood that the employer is lia- 
ble, in the absence of contributory negligence, for the use of 
improper inanimate instrumentalities, knowing them to be im- 
proper, whereby injury accrues to his servants, as defective en- 
gines, or engines out of repair. In such cases, agents of the 
master have been charged with the master^s duty, and have not 
been regarded in the light of fellow-servants.^ It has also been 
decided, in Massachusetts, that the rule as to the master's exemp- 

^ FarweU v. Boston & Worcester Railroad Corporation, 4 Met. 49; Priestly o. 
Fowler, 3 Mees. & W. 1 ; Murray v. Company, 1 McMuU. £q. 385 ; Wonder v. 
Company, 32 Md. 411; Columbus Company v. Arnold, 31 Ind. 174; Warner v. 
Company, 30 N. Y. 470; Louisville Company v. Cavens, 9 Bush, 559; Chicago v. 
Dermody, 61 ni. 431; Hard o, Vermont &c. 32 Vt. 480; Howells v. Landore Steel 
Co. Law R. 10 Q. B. 62; Smith v. Steele, Law R. 10 Q. B. 126; Feltham v. Eng- 
land, Law R. 2 Q. B. 33; Wiggett r. Fox, 11 Ex. 832; Svenson v. Company, 57 
N. Y. 108; Brown v. Company, 3 Hurl. & N. 511; Searle v. Lindsay, 11 Com. B. 
N. S. 429; Illinois Company v. Cox, 21 111. 20; Hayden v. Company, 29 Conn. 
5i8; Sherman v. Company, 17 N. Y. 153; Caldwell r. Brown, 53 Pa. 453; Sulliyan 
V, Company, 11 Iowa, 421. 

SBeaulien r. Portland, 48 Me. 291; Ford v. Company, 110 Mass. 240; Weger t\ 
Company, 55 Pa. 460; Bartonshill Coal Co. r. Reid, 3 Macq. 266; BartonshiU Coal 
Co. V, Maguire, 3 Macq. 300; Davis v. Company, 20 Mich. 105; Abraham v, Rey- 
nolds, 5 HurL & N. 143 ; Hutchinson v. Company, 5 Ex. 343 ; Le Clair v. Com- 
pany, 20 Minn. 90; Harper v. Company, 47 Mo. 667; Gallagher v. Pifer, 16 Com. 
B. N. S. 669 ; Morgan v. Company, Law R. 1 Q. B. 149; Oilman v. Company, 10 
Allen, 233; Chicago &c. Company v. Murphy, 53 111. 336. 

• Cases cited aupra, and Chapman v. Company, 55 N. Y. 529; Lawler v. Com- 
pany, 62 Me. 463; Toledo &c. Co. v, Conray, 61 HI. 162. 

4 Ford V. Fitchburg R. R. Co. 110 Mass. 240. 


tion in the case of fellow-servants does not apply to a case of 
damages resulting to one fellow-servant by reason of injnries 
suffered by the latter's wife from the negligence of another fel- 
low-servant.^ The application of the general rule has also been 
doubted, where the servant causing the injury occupies a higher 
position than the one injured.^ 

But it is also held that defects in machinery must have been 
the cause of injury in order to charge the master ; and if it was 
occasioned, notwithstanding the defects, by the negligence of a 
fellow-servant, the master is not responsible.' If the master 
does not in any way interfere, but employs a competent fore- 
man to superintend the work and select the materials, and the 
foreman selects unsound or unsafe materials, or knows that those 
he has selected have become unsafe, and they cause injury to 
the workmen acting under the foreman's directions, the master 
is not responsible, as the fault is not with him, but with the 
foreman, or fellow-workman.* 

Instances. — An employee of a railroad company was em- 
ployed by the month to render service generally on the road in 
the capacity of baggage-master, conductor of passenger-trains 
and gravel-trains at such times and places along the road as 
directed, and being ordered to go the next day to a certfun place, 
and take charge of a gravel-train, took passage on the train, but 
passed by that place to another place, and on the morning of 
the next day returned by the same train towards the place to 
which he was directed to go to take charge of the gravel-train ; 
but before arriving, by the carelessness of the servants oper- 
ating the passenger-train, he was thrown from the car and in- 
jured. It was held that although he had no duties to perform 
on the passenger-train, his relation of fellow-servant to the em- 

1 Gannon v. Company, 112 Mass. 234. 

> Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Cleveland R. R. Co. v. Keary, 
3 Ohio, 201. And so where the injury was occasioned by the negligence of a 
servant who was not possessed of ordinary skill or capacity in the business in- 
trusted to him. (Harper v. Company, 47 Mo. 567.) 

* Hayes V. Company, 3 Cnsh. 270; Warner v. Company, 39 Cush. 468. 

4 Wigmore v. Jay, 5 Ex. 358; Feltham v. England, I^aw R. 2 Q. B. 33; Mercer 
V. Jackson, 64 111. 397; Forsyth v. Hooper, 11 Allen, 419; Williams v. Clough, 3 
Hurl. & N. 258; 27 Law J. Ex. 325; Gallagher v. Piper, 33 Law J. Com. P. 329; 
Hunt V. Company, 51 Pa. 475; Ormond v. Holland, EL B. & E. 105; Searle v. 
Lindsay, 11 Com. B. N. S. 429; 31 Law J. Com. P. 106; Farwell v. Company, 3 
Macq. 316. 


ployees operating the train did not entitle him to the extra- 
ordinary care due to a common passenger.^ An engine-driver 
on defendant's railroad was killed by the explosion of the loco- 
motive, which occurred in consequence of the neglect of defend- 
ant's master-mechanic to keep the locomotive in repair, it being 
his duty to superintend and direct the repairs of all the locomo- 
tives. The directors furnished their road in the first instance 
with suitable machinery, and faithful and competent employees, 
and they were ignorant of any defect in the locomotive. It 
was held the defendant was not liable.^ A plaintiff was em- 
ployed as a trackman to follow passenger-trains over a certain 
portion of defendant's road, to keep it in order, and report de- 
fects; and while engaged in this duty in the evening he was 
run over and injured by a train of defendant's cars without 
lights, and not usually passing at that hour. The company 
was held not liable, the negligence being that of the managers 
of the train.^ So, where an action was brought against a 
railway company by an administratrix, for damages occasioned 
by the negligence of the company, by their servants, in moving 
trucks against another truck, which the' deceased was assisting 
in turning, and by such negligence causing his death, it appeared 
that he was voluntarily assisting the other servants — that they 
were persons of ordinary skill, and competent to move trucks 
safely, and plaintiff could not recover, as the negligence was 
unauthorized by and without the knowledge of the company.^ 
Where a laborer on a gravel train was riding in a gravel car 
from his boarding place to the place of his work, and was in- 
jured by the carelessness of the engineer, it was held he could 
not recover from the company.^ An "underlooker" in a mine, 
whose duty it was to examine the roof and prop it up if danger- 
ous, was held to be a fellow -laborer with ,a workman in the 
mine, and the latter could not maintain an action against the 
owner for an injury occasioned by the neglect of the ^^ under- 


1 Manville v. Cleveland &c. 11 Ohio N. S. 417. 

2 Hard v. Vermont &c. 32 Vt. 473. 

s Coon V. The Syracuse &c. 1 Seld. 492. 

*Degg V. Midland Sec. 3 Jur. N. S. 396. 

<Byan v. Cumberland &c. 23 Pa. 384; Gillshannon t;. Stony Brook &c. 10 Cush. 
228; Russell v. Hudson &c. 17 N. Y. 134. But see Louisville v. Collins, 2 Duv. 


looker" to prop up the roof, the owner not having had any 
knowledge of the dangerous state of the mine.^ Where an em- 
ployee, ^entering the building of his employer in the ordinary 
course of business, fell through an open hatchway and waa 
killed, it appeared that whenever the hatchway was rightfully 
opened it was by the order of defendant or a particular agent, 
and that then the agent always stood by it when open, to guard 
against accidents. On the particular occasion in question, it 
was opened without the permission or knowledge of the particu- 
lar agent t)r of the employer, the defendant, by the unauthorized 
act of a fellow-servant of the deceased, and the defendant was 
held not liable.^ Where two servants were employed upon the 
same work, and one of them, without authority from his em- 
ployer, directed the other to use a machine for a dangerous and 
improper purpose, one for which it was not provided nor in- 
tended, and the one complying suffered an injury, the employer 
escaped liability.^ In general, whenever the fellow-servant is a 
person of ordinary skill and care in his particular employment, 
if he is reasonably fit and competent in that service, and the 
master uses reasonable care in his selection, and furnishes him 
suitable means to perform the service, and has no notice of 
any subsequent incompetency, the fellow-servant injured by 
the acts of such other cannot recover against the master.^ 
The brakeman on a railroad train, the conductor and engi- 
neer of the same train, the mechanics in the repair shop, the in- 
spector of the machinery and rolling stock, the inspector of the 
rails, laborers on the track, and the superintendent of the move- 
ment of the trains, a sub-contractor and his servants under a 
particular contract, may all be considered fellow-workmen within 
the rule.^ But it seems to be not sufficient that the employees 

1 Hall v. Johnson, 3 Harl. & G. 689. 

3 Karl v. Maillard, 3 Bosw. 691. 

<F6lch V. Allen, 98 Mass. 672. 

^McDermott v. Pacific &c. 30 Mo. 116; Perry v. Ricketts, 36 111. 234; Caldwell 
V. Brown, 63 Pa. 463; Chicago v. Harney, 28 Ind. 28; Michigan &c. v. Leahey, 10 
Mich. 193; Sullivan v. Mississippi &c. 11 Iowa, 421. 

s Cases cited mpray and Wiggett v. Fox, 11 Ex. 832; 26 Law J. Ex. 193; Hayes 
V. Company, 3 Cush. 270; Sherman v. Company, 17 N. Y. 163; Morgan v. Com- 
pany, 33 Law J. Q. B. 260; Law B. 1 Q. B. 149; Ryan v. Company, 23 Pa. 382; 
Russell t7. Company, 17 N. Y. 134. But see Gillenwaier v. Company, 6 Ind. 340; 
Bartonshill Coal Co. v. Reid, 3 Macq. 294; Hunt v. Company, 67 Pa. 476; Burke 


are temporarily subject to the same superintendent if they are 
not servants of the same general master.^ Volunteers offering 
assistance to servants engaged in a difficult or dangerous work 
cannot, if injured, recover damages from the employer for the 
negligence of one of the servants.^ 

§ 127. Negligence of servantB.— Whatever a servant does 
to give effect to the commands of his master may be treated as 
the act of the master.^ But if a servant without the knowledge 
of the master wrongfully takes his master's property, As his car- 
riage, or coach, or horse, for his own purposes, and drives against 
another person's carriage, the master is not responsible — and 
this is because for the time being the servant has a special 
property in the chattel, and for the particular wrongful purpose 
makes it his own.^ The test is not whether the servant was 
actually following instructions in doing the particular act, but 
whether he was on his master's business when the event hap- 
pened. If he was, then the master is liable ; but if the servant 
is on business or on a frolic of his own, the master is not liable.^ 
The master is not liable either, if the act of the servant, instead 
of being done in the general course of his master's business, is 
deliberately malicious or willful, as throwing an article directly 
and purposely at a foot-passenger, or upon him, unless it be 
'done with the express or implied authority of the master.^ If a 
master should employ a servant to remove the roof from his 
house and direct him to throw the materials upon his lot, where 
no one would be endangered, and the servant, disregarding the 
instruction, should carelessly throw them into the street, causing 

V, Company, 34 Conn. 474; Forsythe v. Hooper, 11 Allen, 419; Murry r. Cnrrie, 
L. R. 6 Com. P. 24. 

1 Warbnrton v. Company, Law R. 2 Ex. 30. See Connolly v. Davidson, 15 
Minn. 519; Ashworth v. Stanwix, 30 Law J. Q. B. 183. 

s Flower v. Company, 69 Pa. 210; New Orleans v. Harrison, 48 Miss. 112; Degg 
V. Company, 1 Hurl. & N. 773; 26 Law J. Ex. 173; Potter v. Falkner, 1 Best & 
Smith, 800: 31 Law J. Q. B. 30. 

* Hutchinson v. Railway, 6 £xch. 360. 

^McManus t7. Crickett, 1 East, 106; Sleath t7. Wilson, 9 Car. & P. 607; Lamb v. 
Palk, 9 Car. & P. 631. See Weed v. Panama B. R. Co. 17 K. Y. 362. 

•Joel 17. Morrison, C Car. & P. 603; Cosgrove r. Ogden, 49 N. Y. 256; Wright v. 
Wilson. 19 Wend. 343. 

•Mali V. Lord, 39 N. Y. 381; Vanderbilt v. Company, 2 N. Y. 479; Philadelphia 
Company v. Derby, 14 How. 468. 


an injury to a passenger, the master would be liable, although 
the act was done in violation of his instructions. But should 
the servant, for some purpose of his own, intentionally throw the 
materials upon a passenger, the master would not be responsible, 
because the act would not be done in the course of his business.^ 
As the liability of the master for intentional injuries inflicted 
by his servant can only extend to those arising within the real 
or apparent course of the mastei^'s business, if the servant out- 
side of that employment commits an injury, undirected by his 
master, the latter is not liable. As where the servant of the de- 
fendant, after a person had been put ofE a railroad train, kicked 
him in the face when he attempted to get on again, it was held 
to be the tort of the servant only ; ^ and the master was held 
not liable where the servant willfully drove over another person 
and injured him.^ And so, where a conductor purposely in- 
creased his speed to run into stock on the track ; ^ and where 
the master of a vessel purposely ran into and injured another.^ 
In the language of judicial authority, ^^ if the servant, wholly 
for a purpose of his own, disregarding the object for which he 
is employed, and not intending by his act; to execute it, does an 
injury to another not within the scope of his employment, the 
master is not liable," ^ or as stated in another case, where a 
servant quits sight of the object for which he was employed, 
and without having in view his master's orders, pursues that 
which his own malice suggests, the master is not liable for such 
acts.^ Although the motive of the act, whether it was done in 
the interest of the master or to gratify the personal malice or 
the private interest of the servant, is often important, it is not 
altogether the test. Another essential thing to be taken into 

1 Cosgroye v. Ogden, 49 K. Y. 255. See, also, Mitchell v. Crassweller, 13 Com. 
B. 237; Storey v. Ashton, Law B. 4 Q. B. 476; 38 Law J. Q. B. 223; Bard v. Yohn, 
26 Pa. 482. 

3 Crocker t;. Company, 24 Conn. 249; Evansville, &c. v. Baum, 26 Ind. 70. 
« Wright V. WUcox, 19 Wend. 343. 

4 Illinois &c. V. Downey, 18 111. 259. 

s Bichmond &c. v. Vanderbilt, 2 N. Y. 479; S. C. 1 Hill, 480. But see Chicago 
&o, V. Dickson, 63 lU. 151; S. C. 14 Am. B. 114; Toledo &c. v. Harmon, 47 111. 296; 
Howe V. Newmach, 12 Allen, 49. 

e Howe v, Newmarch, 12 Allen, 49. See Mali v. Lord, 39 N. T. 381; Fraser o. 
Freeman, 43 N. Y. 566; S. C. 3 Am. B. 740; Evansville &c. v. Baum, 26 Ind. 70; 
Little Miami Co. v. Wetmore, 19 Ohio N. S. 110; S. C. 2 Am. B. 373. 

7 McManus v. Crickett, 1 East, 106. 




consideration is whether the act was something contemplated 
by the employment, und something which, if done lawfully, he 
might do in his employer's name. 

Where a servant, in using the team of his master with the 
latter's consent, bat for his own purposes and benefit, the master 
not being present, nor giving any directions, by his negligence 
injures a third party, the master is not responsible.^ So, where 
a servant is directed to drive cattle out of a field, and drives 
them elsewhere than out of the field.^ And it has been held 
that if one employs another to do an act which may be done in 
a lawful manner, and the latter unnecessarily commits a public 
nuisance, whereby injury results to a third person, the employer 
is not liable.^ And it is also said that a master is not responsi- 
ble for the act of a servant employed on the express recommen- 
dation of the plaintiff.^ An owner of land who employs a con- 
tractor for a specific price to alter and repair buildings thereon, 
and to famish all the materials for this purpose, is not liable for 
the negligence of the contractor's subordinates employed by the 
contractor.^ In order to avoid such liability these conditions 
should exist. The acts which are charged as negligence must 
not be done by any specific direction, order, or request of the 
owner. The ordinary relation of master and servant must not 
exist between the owcfer and the negligent agent. The acts 
done must not amount to a nuisance suffered by the owner upon 
hb land to another's injury. In a case in Massachusetts, where 
an owner was sought to be held liable because he employed a 
carpenter for a certain price to alter and repair a building, and 
to furnish all the materials fo( this purpose, and damages 
resulted to a third person from some boards being deposited in 
the highway in front of the land by a teamster in the employ 
of the carpenter, and not of the owner particularly, although 
the boards were intended to be used in the alteration and repair, 
Thomas, J., delivering the opinion of the court, and after 

1 Bard v, Yohn, 25 Pa. 482; Mitchell v. GressweUer, 13 Com. B. 2S7. 

2 Oxford V. Peter, 28 HI, 434. 

» Peachey v. Rowland, 13 Com. B. 182. 

< Donham v. Wild, IQ.Pick. 620. 

'HiUiard v. Bichardson, 3 Gray, 349; Knifi^ht t;. Fox. 5 Ex. 721; DeForrest v. 
Wright, 2 Mich. 368; Beedie & Hobbit v. Bailway,^ Ex. 244; Overton v. Free- 
man, 11 Com. B. 867. See, contra, Bush t;. Steinman, 1 Bos. & P. 404; Wiswell u. 
Brinson, 10 Ired. 554. 


reviewing numerous authorities, concluded as follows : ^' Upon 
what principle can the defendant be heU responsible for this 
injury? He did not himself do the act which caused the 
injury to the plaintiff. It was not done by one acting 
by his command or request. It was not done by one whom 
he had the right to command, over whose conduct he had 
the efficient control, whose operations he might direct, whose 
negligence he might restrain. It was not an, act done for 
the benefit of the defendant, and from the doing of which an 
implied obligation for compensation would arise. It was not an 
act done in the occupation of land by the defendant, or upon 
land to which, upon the facts, he had any title. To say that a 
man shall be liable for injuries resulting from acts done near to 
his land, is to establish a rule as uncertain and indefinite as it is 
manifestly unjust. It is to make him liable for that which he 
cannot forbid, prevent, or remove. The case cannot stand on 
the relation of master and servant. It cannot stand upon the 
ground of nuisance erected by the owner of land or by his 
license, to the injury of another. It cannot stand upon the 
ground of an act done in the execution of a work under the 
public authority, as the construction of a railroad or canal, and 
from the responsibility for the careful and just execution of 
which public policy will not permit the corporation to escape 
by delegating their power to others." ^ The general principles 
announced in this decision have been approved in numerous 
cases, and those holding the contrary doctrine have generally 
been disapproved.^ Where corporations have been held liable 
for the negligence of the servients of their contractors, the cases 
have not generally rested on the relation of master and servant; 
but upon the duty which existed to see that buildings, works, 
etc., were kept in proper repair, and which was totally inde- 
pendent of the means by which obstructions or defects were 
occasioned.^ Where, however, an act contracted to be done is 

^ HilUardo. Kichardson, 3 Gray, 349, denying the aathority and the correct- 
ness of Bush V. Steinman, 1 Bos. & P. 4(H. 

s Cuff V. Newark & N. Y. R. R. Co. 6 Vroom, 17; Fenton v. Company, 8 Ad. & 
E. 835; Rapson v. Cubitt, 9 Mees. & W. 710; Knight v. Fox, 5 £x. 721; Burgess 
V, Gray, 1 Com. B. 578; Overton v. Freeman, 11 Com. B. 867; Randleson v, Mur- 
ray, 8 Ad. & E. 109; Sadler v. Henlock, 4 £1. & B. 570; Steel v. Company, 16 Com. 
B. 650; Brown v. Company, 3 Hurl. & C. 511; Kelly v. New York, 11 N. Y. 433. 

< Storrs V. Utica, 17 K. Y. 1(^; Smith v. London Company, Law R. 3 Com. P. 
326; Chicago v. Robbins, 2 Black. 418; Holmes v. Company, Law R. 4 Ex. 254. 



Toid ctb initio^ the owner may be liable.^ It is to be observed, 
also, that a servant who merely hires fellow-servants to perform 
his master's work is not liable for the negligence of those he 
hires. In such case, either the latter are liable, or the owner for 
whom the work was done — sometimes both parties jointly.^ 

In discussing the subject of the non-liability of the master 
for the acts of fellow-servants toward each other, which have 
resulted in injury, and those cases where the master is not liable 
for the negligence or acts of his servant toward third parties, 
while in many instances there may be a technical remedy, or 
rather right of action against the servant himself, still it is so sel* 
dom that the servant is sought to be held, or that he is presuma- 
bly able to respond in damages of any consequence, that I have 
thought it not improper to treat those cases where the master is 
not held responsible, as practically cases of damnum absque in- 
juria^ and have so considered them. 

§ 128. Negligent management of chattels, etc. — ^Inevi- 
table accident. — ^If an injury has resulted from circumstances 
over which a defendant has had absolutely no control, he is not 
usually liable, though he may be in most cases of mere accident 
on his own part.® So, where defendant's horse, being fright- 
ened by the sudden noise of a butcher's cart, which was driven 
furiously along the street, became ungovernable, and plunged 
the shaft of a gig into the breast of plaintiff's horse, the plaint- 
iff could not recover of the owner of the ungovernable horse ; * 
and where a horse naturally vicious, but not known to be so by 
its rider, became unmanageable, and ran upon the foot pave- 
ment and knocked down and killed the plaintiff's husband, she 
was held not entitled to recover from the rider.^ Such was also 

1 EUis V. Sheffield Gas Go. 2 El. & B. 767. 

* Stone V. Cartwright, 6 T. K. 411 ; Wilson v. Peto, 6 Moore, 49. See Fenton v. 
Company, 8 Ad. &; E. 835; Dalyel v. Tyrer, £1. B. & E. 899; KimbaU r. Cush- 
man, 103 Mass. 194. 

• Vincent v. Stinehour, 7 Vt. 62; liOame v. Bray, .3 East, 699; Hodges v. West- 
beyer» 6 Mon. 337; Weaver v. Ward, Hob. 134; Dickenson v. Watson, 2 Jones, 
206; Castle v. Duryee, 2 Keyes, 169; Underwood v. Hewson, 1 Str. 696; Dixon 
V. Bell, 6 Moore & S. 198; Farrant r. Barnes, 11 Com. B. N. S. 663; 31 Law J. 
Com. P. 137; Taylor v. Rainbow, 2 Hen. & M. 423. 

« Wakeman v. Rolbinson, 1 Bing. 213; 8 Moore, 63. 

6 Hammack v. White, 11 Com. B. N. S. 688; 31 Law J. Com. P. 129. 


the ruling where a horse was frightened by a clap of thunder, 
and ran over the plaintiff, who was incautiously standing with 
others in the carriage-road.^ If a horse, not known by the 
rider to be of a vicious disposition, kicks out without provo- 
cation and injures a by-stander, the rider will not be respons- 
ible ; though he might be if the injury was caused by a dan- 
gerous or incautious use of the spur.^ It may therefore be 
stated as a general proposition, that if a man is entirely de- 
prived of the command of his will and actions, and occasions 
an injury, he is not accountable for the injury which he in- 
voluntarily occasions ; as if, from motives of self-preservation, 
he should jump out of the window of a house on fire, and 
fall against another ; or, in endeavoring to save another from 
inevitable accident, he should run against some one ; or if he is 
deprived of all control over his will by idiocy or permanent 
madness, and should injure another, it is considered as an invol- 
untary trespass for which no recovery can be had. In the case 
of lunacy it has been held that a man is answerable in trespass 
for an injury which . he occasions to another ; but this has been 
considered to be on the strength of authority alone. If the act 
is voluntary, though accidental,, an action may lie. This dis- 
tinction runs through most of the cases. If a man turns around, 
and thus doing accidentally knocks down another whom he does 
not see, he is liable ; but if one forcibly takes another's hand 
and strikes a third with it, the one acting involuntarily is not 

§ 129. Snccessive negligence of two or more parties. — 

An instance of this sort of negligence is presented in the follow- 
ing case : Suppose, through the carelessness of a railroad com- 
pany, sparks should escape from its locomotive and fall on dry 
rubbish, carelessly left by another party scattered over his prem- 
ises near the track, and, fanned by the wind, the sparks ignite 
the rubbish, and this fire is driven by the wind to the buildings 
of another party, which are thereby consumed. In such a case 

^ GibboiiB V. Pepper, 1 Ld. Baym. 3S. 

3 North V. Smith, 10 Com. 6. K. a 070. 

> Vincent v, Stinehour, 7 Vt. 62. Also, see Harvey v. Dnnlop, HiU & D. 103; 
Underwood v. Hewson, 1 Strange, 596; Goodman v, Taylor, Gar. & P. 410; 
Leame v. Bray, 3 East, 593; Bro¥m v. Kendall, 6 Gush. 292. 


it has been considered that the company was only one of the oc- 
casions of the loss, and not the cause ; and that where between 
sach an occurrence and the loss the negligence of another party 
intervenes, without which last negligence the loss would not 
have occurred, the former party is not liable. Wharton, in his 
work on negligence, remarks : ^^ Supposing that it had not been 
for the intervention of a responsible third party, the defendant's 
negligence would have produced no damage to the plaintiff, is 
the defendant liable to the plaintiff? This question must be 
answered in the negative, for the general reason that causal con- 
nection between negligence and damage is broken by the inter- 
position of independent, responsible human action. I am negli- 
gent on a particular subject-matter, and another person, moving 
independently, comes in, and either negligently or maliciously 
so acts as to make my negligence injurious to a third person. 
If so, the person so intervening acts as a non-conductor, and 
insulates my negligence, so that 1 cannot be sited for the mis- 
chief which the person so intervening directly produces. He is 
the one who is liable to the person injured. I may be liable to 
him for my negligence in getting him into difficulty ; but I am 
not liable to others for the negligence which he alone was the 
cause of making operative." ^ On the other hand it is said that 
but for the negligence of the first person that of the second 
would not have resulted in any loss ; and it is asked why should 
the latter be required to pay damages occasioned by his negli- 
gence, when no loss would have resulted but for the active 
negligence of the former ? Would it not, it is asked, be more 
consonant with principles of justice and equity to require the 
parties equally culpable to contribute equally in satisfaction of 
the loss?^ Some such limited doctrine has at times been recog- 
nized in cases of comparative and contributory negligence; 
as where the negligence of the plaintiff has been slight and 
the defendant's gross, the plaintiff has been allowed to re- 

1 Whart. on Neg. sees. 134, et seq, 

> Kellogg V. Chicago &c. Company, 26 Wis. 223; Field on Damages, sec. 666. 
See, also, the doctrine in th^ admiralty courts— Vaux v. Sheffer, 8 Moore P. C. 0. 
75; The Milan, 31 Law J. Adm. 105. 


§ 130. Contemporaneous negligence. — Where the negli- 
gence of two persons is contemporaneous, and the fault of each 
operates directly to cause the injury, the rule is said to be that 
the plaintiff cannot i*ecover if by due care on his part he might 
have avoided the consequences of the negligence of the defend- 
ant. Neither party in cases of collision can recover, when the 
action arises from their united carelessness.^ The question in 
most cases seems to be, whether there was negligence or fault 
on the part of the plaintiff contributing directly as a proper or 
proximate cause to the occurrence from which the injury arose. 
If there was, the plaintiff cannot recover .^ Sometimes, as in 
admiralty law, a doctrine of what is called comparative negli- 
gence is adopted. The defendant is not liable if the plaintiff 's 
negligence exceeded his own.^ 

§ 131. Intervening negligence. — There may intervene be- 
tween the wrongful act of the defendant, as the damage sus- 
tained by the plaintiff, an act of a third person or agency, which 
directly produced the damage. In such case, and if the misfor- 
tune would not have certainly followed without it, the defendant 
will not be liable. For example, the defendant sells gunpowder 
to the plaintiff, a boy eight years old, who takes it home and 
puts it into a cupboard, where it lies for more than a week with 
the knowledge of the child's parents. The boy's mother then 
gives him some of the powder, which he fires off with her knowl- 
edge. This is done a second time, when the child is injured by 
the explosion. The defendant is not liable, on the ground that 
the act of selling the powder to the boy was not the proper 
cause of the injury. There were intervening acts and some 
intervening negligence on the part of the parents.^ So when 
anything arises out of the usual and natural course of events, 
or when any unusual occurrence happens which converts an 
innocent act of negligence into an act of damage. If one 
should build a small fire in the street, though contrary to law, 
and the day be mild, and no storm threatening, and a whirlwind 

^Tnff V. Warman, 6 Com. B. N. 6. 573; Murphy v. Deane, 101 Mass. 455. 
2 Ibid. 

s Chicago &c. v. Van Patten, 64 III. 510; Illinois &c. r. Baches, 59 III. 379; 
0*Keefe v. Chicago &c. 32 Iowa, 467. 
* Carter v» Towne, 103 Mass. 507. 


should suddenly arise and scatter the fire, to the damage of an- 
other, the defendant might not be liable.^ Where an alleged 
breach of duty is involved in a breach of contract, some courts 
both in England and America deny the liability of the defend- 
ant where there are intervening acts of others. They deny the 
liability of the defendant to any one but the person with whom 
the contract was made. But the authorities are not uniform. 

§ 132. Mutual negligence. — In cases of mutual negligence, 
and where the negligence of each party was a proximate cause 
of the injury, no action can be maintained. In such cases there 
cannot usually be an apportionment of damages. And where 
the negligence of the plaintiff is proximate and that of the de- 
fendant is remote or consists of some other matter than what 
occurred at the time of the injury, no action can be maintained.^ 

Illustrations. — Where a person crosses a railroad track with- 
out taking due care to ascertain whether there is a train ap- 
proaching, and is run over by a train coming upon him una- 
wares, he is chargeable with contributory negligence, and dam- 
ages are not recoverable for* injuries sustained thereby.* The 
passenger car is usually the proper place for passengers on a 
nulroad train, and if a passenger is injured by reason of his 
being in or on some other car, not designed for the use of passen- 
gers, and where there is greater danger and hazard than in the 
passenger car, it ordinarily constitutes contributory negligence. 
But where a passenger is injured by a collision while riding in 
a baggage car, if he is there by invitation or direction of the 
conductor, or if he has usually been permitted to ride there for 
any reason, that is sufficient to relieve him of the charge of con- 
tributory negligence.* Where the approach to a railroad was 
dangerous, because the track could not be seen beyond the point 
of crossing, and the plaintiff's intestate did not stop to listen 
before he attempted to cross the track, and was killed in at- 

1 See Insurance Co. v. Tweed, 7 Wall. 44. 

' Trow V, Company, 24 Vt. 487; Slierman r. Company, 24 Iowa, 515; Callahan 
V. Wame, 40Mo. 131: Tacker v. Cbamplin, 2 Car. & K. 790; Galena &c. Co. v. 
Vanilergrift, 34 Mo. 55; Redfield on Ratlwaya, 330; Field on Damages, sec. 171, 
and cases cited. 

> Morris B. B. Co. v. Haalan, 33 N. J. L. 147; Langlioff o.' Milwaukee R. Co. 
23 Wis. 43. 

^ O'Donnell v. Company, 59 Pa. 239. 

D. A. I.— 18. 


tempting to do so, by a passenger locomotive, the deceased was 
held guilty of negligence per se^ and the question of contribu- 
tory negligence was held improper to be submitted to the jury.^ 
Where a child nine years old jumped upon a properly con- 
structed draw, from a railroad bridge, while the draw was being 
lawfully closed, and was thereby injured, it was held to be so 
wanting in ordinary care as to prevent a recovery.^ If a foot 
passenger crosses a street where the moving vehicles are numer- 
ous, and a collision with them likely to occur, and to produce 
serious injury, and crosses without looking in both directions to 
ascertain whether they are approaching, and if so, their rate of 
speed and distance, he is chargeable with negligence per se^ 
which will defeat a recovery for any injury to which said want 
of care contributed.^ And where a brakeman employed on a 
freight train was aware that some bridges under which the train 
passed were too low to admit of his standing upright on the top 
of the car, and he had been cautioned in regard to them, and 
notwithstanding this he attempted to pass under a bridge while 
seated upon the top of a brake, which position elevated him 
higher than he would have been if standing upon his feet, and 
he was thereby killed, the company was considered not liable.^ 
Where a fire which caught from a locomotive spread from the 
railroad track of the defendant, and, fed by prairie grass, reached 
the hay-stacks of the plaintifiP on an open prairie a half-mile 
distant from the place where it started, it was held that it was 
contributory negligence on the part of the plaintiff, under the 
circumstances, in not plowing around the stacks to protect them 
from such fires.^ And in an action against a railroad company 
for the loss of a house alleged to have been burned through their 
negligence, it was held that the company were not liable for the 

1 Pennsylvania B. Co. v. Beale, 78 Pa. 504; ArtsEt;. Company, 34 Iowa, 153; Han- 
over B. B. Co. V, Coyle, 66 Pa. S96; North Pa. B. Co. v. Hietman, 13 Wright, 60; 
Havers v. Erie Co. 41 N. Y. 296; Alyn v. Boston Co. 106 Mass. 77; Bailway Co. 
V. Whitton, 13 Wall. 270. 

3 Brown o. Company, 68 Me. 384; Stout v. Company, 2 Dill. C. C. 294. 

* Barker v. Savage, 46 N. Y. 191. 

^ Devitt V, Company, 60 Mo. 302; Barton v. St. Tionis & Iron M. B. Co. 52 Mo. 

* Keesee v. Company, 30 Iowa, 78; Bailroad v. Shaafelt, 47 HI. 497. But see 
Kellogg V. Company, 26 Wis. 223. See, also, Peasley v. Company, 96 Mass. 414; 
Cook V. Company, 1 Denio, 91; Vaughn v. Company, 3 Hurl. & N. 743. 


loss of a package of monej in the house at th^ time of the fire, 
bat through the plaintifTs negligence not removed therefrom, 
when it might have been, after the fire originated, and without 
danger.^ The matter has been more fully considered under the 
head of contributory negligence. 

§ 133w Negligence of medical meiL — ^To render a physi- 
cian liable for negligence there must appear to have been a 
failure to exercise such diligence or skill as a prudent medical 
man of fair ability would have exercised under the same cir- 
cumstances. The decree of diligence required will be propor- 
tionate to the nature of the case. Sometimes the highest degree 
of diligence is required. But as to the skill required, the phys- 
ician is held only to a fair and reasonable degree of skill unless 
the physician should pledge himself to the exercise of an extra- 
ordinary degree of skill in a particular case, or in the exercise 
of a special branch of the profession. A defendant, an ac- 
coucheur and physician, was retained to attend the plaintiffs 
wife. The court instructed the jury that it was not enough to 
make the defendant liable that some medical man of much 
greater experience or ability might have used a greater degree 
of skill, nor that he might possibly have used some greater 
degree of care.^ So, the defendant, a surgeon, was employed 
by the plaintiff to treat an injury done to his hand and wrist, 
and the plaintiff charged that he conducted himself in such a 
careless, negligent, and unskillful manner that the plaintiff's 
hand became withered, and was likely to become useless. The 
court instructed the jury that the question for them to decide 
was whether they were satisfied that the injury was attributable 
to the want of a reasonable and proper degree of care and skill 

^ Toledo Company v, Pindar, 53 HI. 447. 

That no one can maintain an action for a wrong where he has consented or 
malerially contributed to the act which occasions his loss, or where the loss is 
the result of the negligence of both parties, and without intentional wrong on 
the part of the defendant, see Horton v. Ipswich, 12 Cush. 488; Holly v. Com- 
pany, 8 Gray, 123; Parker v. Adams, 12 Met. 415; Counter v. Couch, 8 Allen, 436; 
WilliaznB v. Company, 2 Mich. 269; Michigan Co. v, Leahey, 10 Mich. 193; Locke 
V. Company, 15 Minn. 350; Griggs t;. Fleckenstein, 14 Minn. 57; Dix v. Brown, 41 
Miss. 131; M. & C. R. Co. v. WhitAeld, 44 Miss. 466; Galena Co. v, Yandergrift, 
34 Mo. 55; Callahan v, Wame,'40 Mo. 131; Meyer v. Company, Ibid. 151; Birge v. 
Gardner, 19 Conn. 511; New Haven Co. v. Yanderbilt, 16 Conn. 429. 

< Rich V, Pierpont, 3 Post. & F. 35. 


in the defendant's treatment. The defendant's business did not 
require him to, at all events, perform a cure, nor to use the 
highest possible degree of skill.^ So, where the defendant, a 
surgeon, was employed to treat a violent fracture of the plaint- 
iff's arm, the court held that a surgeon contracts that he has 
such skill and knowledge as will enable him to properly and 
judiciously perform the duties of his calling. But the law does 
not require the highest degree of skill and knowledge, but only 
such a reasonable degree as will enable the person safely and 
discreetly to discharge the duties assumed.^ These are matters 
more properly arising, however, out of implied contract than 
strictly within our subject-matter in its relation to the law of 

1 Lamphier v, Phipos, S Car. & P. 475. ^ Wood v. Clapp, 4 Sneed, 65. 




§ 134. Deceit, fraud, and misrepresentation. 

§ 135. What must be shown, or the action fail. 

§ 136. The representation. 

$ 137. Knowledj^e of falsity. 

§ 138. Ignorance and belief of the plaintiff. 

§ 139. Equal means of knowledge. 

§ 140. The intention that the representation should be acted upon. 

§ 141. Acting upon the representation. 

§ 142. Waiver of fraud. 

§ 143. Expressions of opinion and belief. 

§ 144. Negligence of innocent parties. 

§ 134. Deceit, fraud, and misrepresentation. — In this 
book I have, as stated at the outset, confined my attention to 
the subject in connection with the law of torts. I have not 
gone into the subject of injuries arising from breach of con- 
tract ; and those misrepresentations which amount to a breach 
of warranty are not, therefore, within my present purpose.^ 
There are some cases of apparent misrepresentation, deceit, and 
fraud which are not particularly connected with contracts, or 
rather not founded upon them, and which fall within the scope 
of the subject-matter, not being susceptible of legal remedy ; 
and I will now refer to a few of them. 

§ 135. What must be shown, or the action fail. — In 

actions for deceit, in order to entitle the plainti£E to civil re- 
dress, it must usually appear, first, that the defendant has made 
a false representation of material facts ; second, that he made 
the same with knowledge of its falsity ; third, that the plaintifE 
was ignorant of its falsity, and believed it to be true ; fourth, 

1 Warranty rest« upon contract, wbile simple fraud is essentially a tort— Rose 
V. Hurley, 99 Ind. 77. But fraud in more frequently set up as a defense to^& 
action at law, or relied upon in equity as a ground for rescinding or nullifyii^H 
contract than made the foundation for a distinct action for damages. 


that it was made with the intent that it should be acted upon ; 
fifth, that it was acted upon by plainti£E to his damage. It will 
now be our province to point out those cases where some of 
these elements are wanting, and the qualifications of the rule, 
presenting cases, perhaps, where a party may be damaged, but 
where he has no legal redress, and therefore cases of dcemnum 

absque injuria. 


§ 136. The representation. — ^The plaintifE should make it 
appear that the conduct imported a definite representation, such 
as would justify a prudent man in taking the action complained 
of. So the representation cannot consist in the expression of a 
mere opinion, however false ; as if an agent of a railroad com- 
pany makes false statements in regard to the value of a donation 
of land made to the company, and in regard to the amount of 
assets of the company, and the probable cost and profits of the 
road when completed. This is not deceit so as to constitute a 
legal liability, however great the ensuing damage.^ But the 
statements must be statements of opinion, and not statements 
of fact.^ Very slight expressions are sometimes considered 
sufficient to put statements on the footing of opinions ; as where 
a defendant, in answer to inquiries concerning the circumstances 
and credit of a third person, said to the plaintifE, ^^ I should be 
willing to give him credit foi* anything he wanted.? Such a 
statement cannot be safely acted upon. The fact that the de- 
fendant is willing to give him credit does not justify the plaint- 
iff in doing so. But if the opinion is given as an expert, and 
given dishonestly, the rule changes ; as where the defendant, a 
cattle-dealer, desiring to sell cattle to the plaintiff, expressed 
an opinion that the cattle would weigh nine hundred pounds 
and upward per head. But he had already weighed the cattle, 
and knew that the average weight was considerably below nine 

^ Anderaon r. Hill, 12 Smedes & M. 679; Tuck v. Downing, 76 111. 71; Medbnry 
V.Watson, 6 Met. 246; Ellis v. Andrews, 06 K. Y. 83. See, also, Holbrook o. Con- 
nor, 60 Me. 576; Cooper v. Lovering, 106 Mass. 79; Martin v. Jordan, 60 Me. 
531; Bishop v. Small, 63 Me. 12. 

3 Van Eppe v. Harrison, 5 Hillf 63; Page r. Parker, 43 N. H. 363; McFadden o. 
Bobinson, 35 Ind. 24; Morehead v. Eades, 3 Bush, 121 ; Ellis o. Andrews, 56 N. Y. 

• Campbell v. Fleming, 1 Ad. & £. 40; Bedford v. Bagshaw, 4 Hurl. & K. 
. See Bradley v. Poole, 96 Mass. 169. 


hundred pounds.^ The representation should relate to a present 
or past state of facts ; if it relate to a matter in the future, it must 
be uncertain, unless it be the expression of an intention to do an 
act, and it can be made to appear (a matter of extreme diffi- 
culty) that the defendant had no such intention.^ So, also, the 
false representation should be of matter of fact, not of law. If 
a party relies upon the latter, he usually has no redress, what- 
ever damage he may sufiPer. A stockholder in a corporation 
cannot, therefore, maintain an action against the company for 
misinforming him of the legal effect of his contract of subscrip- 
tion.^ But if a person has superior means of knowing the law, 
and professes to be able to give correct information to one ignor- 
ant of it, the party may be liable.^ 

It is said that an action cannot be maintained for the telling 
of a bare lie, knowing or not knowing the falsity of the state- 
ment, if said without any design to impose upon or cheat an- 
other, and without any intention that the other should rely or 
act upon it.^ So if a person has reason to believe and actually 
believes a particular fact to be true, and represents what he be- 
lieves, he is not liable merely for his mistake, unless he be under 
some legal obligation to state the truth correctly.® The inten- 
tion to have the other party act on the false information is a sa- 
lient feature in this class of actions. If a person makes a repre- 
sentation in good faith, honestly believing it to be true, and has 
reasonable ground for his belief, he is not then responsible if he 
is altogether mistaken and formed a wrong judgment in the mat- 
ter, whatever damage may result to plaintiff, unless, as before 
observed, he is under legal obligation to find out the truth.^ 

1 Birdsey v. Butterfleld, 34 Wis. 52; Picard v, McGormick, 11 Mich. 68; Kostv. 
Bender, 25 Mich. 515; Pike v. Fay, 101 Mass. 134. 

* Jordan v. Money. 5 H. L. Gas. 185; Citizens' Bank v. First Natl. Bank, L. B. 
6 H. L. 352; Pedrick v. Porter, 5 Allen, 324. See Kimball v. Company, 9 Allen, 
540. ^ 

* Upton V. Trlbilcock, 91 U. 8. 45. 
*<Moreland v, Atchison, 19 Tex. 303. 

•Bebn v. Kemble, 7 Com. B. N. S. 200. 

•Collins V. Evans, 5 Q. B. 82^); Ormrod v. Huth, 14 Mees. & W. 664; Chllders 
V. Wooler, 29 Law J. Q. B. 129; Marsh v. Falkner, 40 K. Y. 562; Weed v. Case, 55 
Barb. 534. 

7 Haycraft v. Creasy, 2 East, 105. 


§ 137. Knowledge of falsity. — So far as the question of 
damages is concerned, independent of contract, an honest state- 
ment of fact, though made with a view to being acted upon, 
will not always, upon turning out to be untrue, create a liability 
for damages on the part of the person making the representa- 
tion.^ Knowledge of the falsity of the statement must be fixed 
upon the defendant, unless it was made of his own positive 
knowledge, when he. knew nothing at all about it, or, second, 
unless made of a fact peculiarly within his knowledge or means 
of knowledge, and not withm the plaintifiP's. If the statement 
was a mere matter of opinion, no action will lie ; neither will it 
if the plainti£E himself knew the truth. 

The law raises no presumption of guilty knowledge from the 
mere fact that the representation was false ; knowledge of the 
falsity — the scienter — must be proven.^ This is the general 
rule. There are, however, many cases where the general rule 
does not hold good, and where the defendant is either presumed 
to know or held bound to know the true state of things — as the 
state of his own business and his own peculiar circumstances, 
the amount of money he is worth, etc.^ So, also, if a person, 
however honest, assumes to act as agent for another, and has no 
actual authority, he renders himself liable to the person misled.^ 
But if the person so acting honestly and fully discloses all the 
facts touching the supposed authority — even if the plaintiff 
should honestly suppose that the facts gave the defendant au- 
thority, the former is without redress, because he has drawn his 
own inference, and it is bis mistake.^ Where persons profess 
to act as experts, the scienter need not be proven.® Where a 

^Collins V. Evans, 5 Q. B. 820; Thorn v. Bigland, 8 Ex. 725; Ormrod v. Huth, 
14 Mees. & W. 651; Childera v. Wooler, 2 £1. & E. 287; Behn v. Kemble, 7 Com. 
B. N. S. 260; Mahurin v. Hardinf;, 28 N. H. 128 ; Barley v. Walford, 9 Q. B. 197; 
Evertson v. Mills, 6 Johns. 138; Case v. Boughton, 11 Wend. 106; Edick v, Crim, 
10 Barb. 445. See Cornfoot v, Fowke, 6 Mees. & W. 358. See, contra, Haycraft 
V. Creasy, 2 East, 92: Taylor v. Ashton, 11 Mees. & W. 401. 

^Barnett v. Stanton, 2 Ala. 181; McDonald v. Trafton, 15 Me. 226. 

* Morse t;. Dearborn, 109 Mass. 593. 

4 Mahurin v. Harding, 28 N. H. 128 ; Noyes v. Loring, 65 Me. 408: Indiana Co. 
V, Tyng, 63 K. Y. 653; May v. Company, 112 Mass. 90. But see Play ford v. Conh 
pany, Law B. 4 Q. B. 706. 

6 Newman v. Sylvester, 42 Ind. 106. 

• Koat V, Bender, 25 Mich. 515 ; Pickard v. McConnick, 11 Mich. 68. See McOar 
V. WUliams, 26 Ala. 467. 


statement is made ia the belief that it is true, and is based upon 
information which justifies it, but which turns out incorrect, 
there is no liability ; but the information must not be inad- 
equate, such as rumors, etc.^ 

§ 13& Ignorance and belief of the plaintiff — The 
plainti£E must usually be ignorant of the true state of facts, and 
must have relied upon the representations of the defendant to 
fix the latter's liability. The plaintifE must be deceived by the 
defendant, or if there is damage it is damnum absque injuria as 
against the latter. If the plaintiff I\ad notice or knowledge 
of the truth, or acted upon independent information and not 
upon the defendant's representations, he is without remedy 
against the latter, and the burden of proof is upon the plaint- 
iff.^ If a purchaser of property chooses to make investigations 
of his own as to the truth of the representations, he is without 
remedy, nor can he say that the defendant concealed facts if the 
latter did nothing to prevent the purchaser from making as am- 
ple investigation as he chose.^ There are cases, also, where the 
plaintiff, though actually ignorant of the facts, and supposing 
the representation to be true, is held bound to know them, as 
where he has the means directly at hand of informing himself, 
and fails or refuses to make the inquiry. Notice is here pre- 
sumed, and such notice is considered equivalent to knowledge — 
as where, in the absence of express warranty, goods are lying 
at hand in a condition for ample inspection, the plaintiff can- 
not say he was deceived as to their quality, though he might 
have been.* But if he be prevented, by the acts, arts, or words 
of the defendant, from making such investigation, the rule 
changes.^ As where a defendant, in selling a patent, makes 
false representations as to what the patent covers. The plaintiff 

1 Brooks V. Hamilton, 15 Minn. 26; Faribault v. Sater, 13 Minn. 223; Taylor v, 
Leith, 26 Ohio St. 428; Botsford v. Wilson, 75 III. 132. 

^Hagee v. Grossman, 31 Ind. 223; Tuokv. Downing, 76 HI. 71; Whiting t;. HUl, 
23 Mich. 3d9; Pasley v. Freeman, 3 T. R. 51. 

* Halls V. Thompson, 1 Smedes & M. 443. 

^ Ely V. Stuart, 2 Md. 408. See, also, Salem Rubber Co. v, Adams, 23 Pick. 256; 
Brown v, Tieach, 107 Mass. 364; Buck v. McCaughtry, 5 T. B. Mon. 221. 

< Mead v. Bunn, 32 N. Y. 275; Parham v, Randolph, 6 How. (Miss.) 435; Mc- 
Clellan v, Scott, 24 Wis. 81; Kiefer v. Rogers, 19 Minn. 32; Matlock v. Todd, 19 
Ind. 130; Holland v. Anderson, 38 Mo. 56. 


may rely upon these representations, though an inspection o£ 
the records of the Patent OfBce would disclose their falsity.^ 

A person able to read, and of sound mind, is usually bound 
to know and understand the contents of an instrument executed 
by him or in his possession as a party to it, unless it contain 
technical or foreign terms, and he has been misled as to their 
meaning. Such a person cannot generally be heard to say that 
he has not read the instrument, and that the other party falsely 
stated its contents to him.^ But, of course, these principles do 
not apply to cases of trick or artifice, as where a party has by 
fraud been made to sign a different paper from the one he in- 
tended to sign. 

§ 139. Equal means of knowledge. — An action for deceit 
cannot be maintained by a person who has himself neglected to 
exercise reasonable care. Where both parties have equal means 
of knowledge, the law will not protect the negligent party in 
case of misrepresentation by the other ; as where a note was 
taken for a horse, and the vendpr took the note after the vendee 
had by his conversation thrown suspicion on it, and refused to 
indorse it. It was held, in an action for deceit by the vendor 
against the vendee, that, as the former had taken the note at his 
own risk, the principle of caveat emptor applied ; and unless the 
latter had used some trick or artifice to conceal the defects in 
the note, he was not liable for deceit* The principle of caveat 
emptor might have applied, though not the rule, as it is obvious 
that the vendor was not the emptor.^ 

§ 140. The intention that the representation should be 
acted upon. — ^It must appear, where a party complains of false 
representations whereby he was caused to suffer damage in a 
transaction with some third person^ that the defendant intended 
that he should act upon the representation, or knew that he 
would, or that the plaintiff was justified in inferring such inten- 
tion. It is not enough to show that the misrepresentation was 

1 David V. Park, 103 Mass. 601. 

< Rogers v. Place, 35 lud. 577; Bacon v, Markley, 46 Ind. 116; Hawkins o. Haw^ 
kina, 60 Cal. 558. See Craig v. Hobbs, 44 Ind. 363; KeUer v. Ck>mpany, 28 Ind. 170. 

* Smith V. Andrews, 8 Ired. 3; Bell v. Byerson, 11 Iowa, 283. See Moore o. 
TurbeyiUe, 2 Bibb, 602; Saunders v. Hatterman, 2 Ired. 32. 


made with knowledge of its falsity.^ Where the buBiness trans- 
action is between pliuntiff and defendant, the case is differ- 

§ 14L Acting upon the representation. — ^The representa- 
tion must be acted upon to plaintiff^s damage. If not, it pre- 
sents a case rather of injuria sifie damno than of damnum ahs- 
que injuria. If the communication, hoYCver, falsely or fraud- 
ulently be communicated by an intervening person, he must 
have authority to carry it to the plaintiff. If he has none, 
ahhough the defendant may have acted upon the representa- 
tion, the defendant is not liable. So in case of misrepresenta^ 
tions in a prospectus which was addressed to the public and in- 
vited proposals for allotment of shares. The plaintiff had not 
purchased his shares from the company, but on the market, 
yet relying upon the statements in the prospectus. He was 
held not entitled to judgment.^ There must be something con- 
necting the directors and the party deceived, as delivering the 
prospectus to the purchaser, who thereupon buys, etc. It is 
said that one who has been prevented from attaching property 
by the fraudulent representations of the owner, or of his agent, 
is deemed to have suffered no legal damage, though another 
attachment should intervene, and the debt be lost. The person 
acquired no lien on the property, and therefore lost none. His 
intention to attach was simply frustrated.^ If the attachment 
has been already levied, and then lost by reason of the deceit, 
the case is different.^ In cases of slander of title, the plaintiff 
must prove that the statement of the defendant was made with 
actual malice, and that it Has been accompanied with actual spe- 
cific damage ; otherwise he is without remedy. The statement 
must have been made with knowledge of its falsity, and with 
intent to deceive, this constituting ^^ actual malice." If the 

1 Fftsley V, Freeman, 3 T. R. 51; Thorn o. Bigland, 8 Ex. 725; Tapp v. Lee, 3 
Boa. & P. 367; Polhie v. Walter, 3 Bam. & Add. 123; Watson v, Ponlson, 15 
Jar. 1112. 

'Peek V. Gnmey, 43 Law J. Ch. 19; in House of Lords, overruling Bedford v. 
Bagshaw, 4 Hurl. & N. 54S. 

* Bradley v. Fuller, 118 Mass. 239; Lamb v. Stone, 11 Pick. 527. 

* Swift o. Winterbotham, Law B. 8 Q. B. 244; Peek v. Gumey, Law R. 6 H. T^ 


statement is made in good faith,^ ^ith a belief in its truth — as 
trustee, for instance, of a particular estate — ^the plaiutifE has no 
redress. Besides, the third person must have been deceived bj 
the false statement, and must have acted upon that particular 
statement. If he knew. the truth, or acted upon other infor- 
. mation, the action cannot be maintained. With regard to signs 
and badges of business, it must appear that the defendant knew 
of the existence of the plaintifip's mark when he committed the 
injury, that he intended to avail himself of the plaintifiTs busi- 
ness advantages by reason of the trade-mark, or other sign or 
badge, and that the public were thereby deceived.^ But St 
seems that in a proceeding for injunction it is not necessary to 
prove the defendant's knowledge or intent to deceive ; simple 
priority of use is sufficient.* 

§ 142. VSTaiver of fraud. — If a vendee knowingly accepts 
and retains property or any benefit under a contract tainted 
with fraud, and uses the property acquired as his own, after the 
discovery of the fraud, or does any positive act acquiescing in 
the fraud, or unduly delays to reclaim his property or to give 
up what he has received, he may thus place himself in the po- 
sition of affirming the transaction, and be precluded from his 
remedy, whatever damage he may have suffered.* 

Tndorsers. — If a person is induced to sign his name as surety 
to a negotiable note without reading it, and under false repre- 
sentations, this constitutes no sufficient defense to an action by 
the payee against the surety, if it do not appear that the payee 
had any knowledge of the alleged fraud. And this upon the 
principle that where one of two innocent parties must suffer a 
loss, the one whose carelessness or acts have been instrumental 
in producing the loss must bear it.^ 

1 Pater v. Baker, 3 Com. B. 831, 868; Malacby v. Soper» 3 Bing. N. G. 371; Pitt 
V. Donovan, 1 Maule & S. 639; McDaniel v. Baca, 2 Gal. 326; Stark v. Chitwood, 
5 Kan. 141. 

sSykes v. Sykes, 3 Bam. & G. 541; Marsh v. Billings, 7 Gush. 59; Rodgeis v, 
Kowill, 5 Gom. B. 109; Bigelow on Torts, 36; Bigelow's L. G. Torts, 5^72; Sin- 
gleton V. Bolton, 3 Doug. 293. 

> Millington v. Fox, 3 Mylne & G. 338. 

* Negley c. Lindsey, 67 Pa. 217. 

ft Wright V. Flynn, 33 Iowa, 159; Lepperv. Kultman, 35Ind. 384. 


§ 143. BzprMsioiiB of opinion and belief. — When a rep- 
resentation is made concerning what is a mere matter of opinion, 
aboat which every man can exercise his own judgment, and in- 
vestigate, it is the plaintiff's own fault if he is deceived. How- 
ever erroneous an opinion may be, if .the party giving it pos- 
sesses no exclusive means of knowledge, and believes it to be 
true, there is no fraud. So the credit to which a man is en- 
titled in the commercial world is a matter which is to a great 
extent a matter of judgment and opinion, on which different men 
will form different beliefs ; and if one, in answer to inquiries re- 
sfiecting the solvency or credit of a particular individual, or of 
a partnership or a company, only states his own honest opinion, 
he is not responsible for its correctness.^ If a sheriff, about to 
make a levy, makes inquiry of another as to whether certain 
goods do or do not belong to the debtor, or as to the identity of 
the person of the debtor, and the person applied to only repre- 
sents what he believes to be true, he is not responsible in an ac- 
tion for deceit, if the information he gives turns out to be false, 
and the sheriff who has acted upon it as true be damnified. But 
if a person officiously interferes and gives directions, the case is 

§ 144. Negligence of innocent parties. — If the condi- 
tion of things is such that one of two innocent parties must 
suffer from a fraud, and the negligence of one has enabled the 
fraud to be committed, he who is chargeable with the negligence 
must bear the loss. It is damnum absque injuria as to him. 
So if one, through his own culpable carelessness while dealing 
with a stranger, allows himself to be inveigled intQ signing a 
negotiable note which he believes is something entirely different, 
he cannot defend against a bona fide holder.^ But it is alsd 

iHaycraft r. Creasy, 2 £a8t, 105; Collins v. Evans, 6 Q. B. 828; Hubbell r. 
Meigs, 60 N. Y. 481; Cabot v. Christie, 42 Vt. 121; '^'eed v. Case, 65 Barb. 534; 
Marsh v, Falkner. 40 N. Y. 662; Tuck v. Downing, 76 111. 71 ; Pasley v. Freeman, 
3T. R. 51; Ross v. Company, L. R. 3 Eq. 122; Fulton v. Hood, 34 Pa. 365; Bris- 
tol V. Braid wood, 28 Mich. 191; Ellis v. Andrews, 66 K. Y. 83; S. C. 15 Am. R. 
879; Payne v. Smith, 20 Ga. 654; Reed v. Sidener, 32 lud. 373; Fish v, Cleland, 
33 in. 238; Lehman v. Shackleford, 50 Ala. 437; Childers v. Wooler, 29 Law J. 
Q. B. 136; Wakeman v. Dalley, 51 K. Y. 27. 

s Collins V. Evans, 5 Q. B. 830. See Childers v, Wooler, 29 I^aw J. Q. B. 129. 

* Douglass V. Matting, 29 Iowa, 498 ; S. C. 4 Am. R. 238; Chapman v. Rose, 66 
N. Y. 137 ; 8. C. 15 Am. R. 401; Hern v. Nichols, 1 Salk. 289. See, also, Mead v. 


held that if the party whose signature was .fraudulently pro- 
cured was guilty of no negligence, the paper is absolutely void, 
in whosesoever hands it may be ; ^ and, as a general rule, it is 
probably true that even negotiable paper is vmd, as to all but 
bona fide holders, where the signature is obtained by trick or 
artifice, and the party believes he is signing an instrument dE 
an entirely di£Eerent character.^ An alteration of a note, by 
filling a blank carelessly left therein, will, under some circum- 
stances, avoid it in (he hands of a bona fide purchaser.' 

Munson, 60 111. 49; Putnam v. Sullivaii, 4 Mass. 45; Brahan v. Ragland, 3 Stewt. 
247; Craig v. Hobbs, 44 Ind. 363; McDonald v. Muscatine Bank, 27 Iowa, 319; 
Holmes v. Trumper, 22 Mich. 427; Clarke v. Johnson, 54 HI. 296; Shirts v. Ovex^ 
John, 60 Mo. 306; Leach v. Nichols, 55 HI. 273; Judson v. Bennett, 21 N. Y. 238. 

1 Brings V. Ewart, 51 Mo. 245; S. C. 11 Am. R. 445; Gibbs v, linaberry, 22 
Mich. 479; S. C. 7 Am. R. 675; Taylor v. Atchison, 54 111. 196; S. C. 5 Am. R. 
118; Walker v, Ebert, 29 Wis. 194; Butler v. Cams, 37 Wis. 61; Kellogi? v. 
Steiner, 29 Wis. 626. 

'See cases already cited, and Corby v. Weddle, 57 Mo. 4jS2; Jones v. Anstin, 
17 Ark. 498; Martin v. Smylee, 55 Mo. 577; Foster v. McKinnon, Law R. 4 G. P. 
704; Anderson v. Walter, 34 Mich. 113; Sims v. Bice. 67 HI. 88; Munson v. 
Nichols, 62 111. HI; Louchheim v. Gill, 17 Ind. 139; Byers v. Daugherty, 40 Ind. 
198; Laidla v. Loveliss, 40 Ind. 211. 

* Ivory V, Michall, 33 Mo. 398; Rainbolt v. Eddy, 34 Iowa, 440; 8. C. 11 Am. R. 
152; Washington Savings Bank v. Ecky, 51 Mo. 272; Nance v. Lary, 5 Ala. 370; 
Stacy V. Ross, 27 Tex. 3. 




AbboU V. Kimball, 19 Yt. 568, p. 96. 

V. Macfie, 33 liaw J. Ex. 117, p. 
Abrams v. Smith, 8 Black. 95, p. 71. 
Abraham v. Reynolds, 6 Hurl. & N. 

149. pp. 268, 261. 
Abrahams v. Kidney, 104 Mass. 222, p. 

Absor V, French, 2 Show. 28, pp. 13, 18, 

118. . ' 

Acker v. Ledyard, 8 Barb. 614, p. 228. 
Ackerly v. Parkinson, 3 Maule & S. 

411. p. 206. 
Acton V. Blundell, 12 Mees. & W. 324, 

pp. 161, 162, 155, 166, 159, 164, 165. 170, 

174, 175, 176, 177, 184, 187, 190, 204. 
Adams v. Carlisle, 21 PItk. 146, p. 239. 
17. Lisher, 3 Blackf . 241, p. 89. 
V. Walker. 34 Conn. 466, pp. 

V. WagRonel, 33 Ind. 531, p. 37. 
Adkins v. Brewer, 3 Gowen, 206, pp. 

It 20, 211. 
Aertsen r. The Aurora, Bee Adm. 161, 
. p. 42. 
Aga Kurboolie Mahomed, 4 Moore P. 

C. C. 239. p. 221. 
Aier v. FrosL 1 Roll. R. 431, p. 66. 
Akerley v. Haines, 2 Caines, 292, p. 60. 
Albro V. Agawam, 6 Gush. 75, p. 2S6. 

V. Company, 6 Gush. 76, p. 267. 
Alcorn v. Hooker, 7 Blatchf . 68, p. 76. 
Aldrich v. Howard, 8 R. I. 246. p. 59. 
Aid worth v. Stewart, 4 Fost. & F. 967, 

p. 38. 
Alexander v. Milwaukee, 16 Wis. 247, 

p. 12. 
Alfele V. Wright, 17 Ohio St. 238, p. 66. 
Alfred's Case, 9 Go. 586. p. 4. 
Alfred v. Farlow, 8 Q. B. 854, p. 66. 
Allen V. Dykers, 3 Hill, 593, p. 110. 

V. Hillman, 12 Pick. 101, pp. 71, 

V. Wright, 8 Gar. & P. 626, p. 56. 
Allison V, Chandler, 11 Mich. 642, p. 237. 
AUyn t7. Boston &c. 106 Mass. 77, pp. 

246 274. 
Alsop v. Yates, 2 Hurl. & N. 768, p. 

Alston V. Scales, 9 Bing. 3, p. 19. 
Alton V. Hope, 68 HI. 167, p. 202. 
Ambler t;. Church, 1 Root, 211, p. 209. 

D. A. I.— 19. 

American Company v. Bradford, 27 

Gal. 360, pp. 205, 206. 
Ammerman v. Crosby, 26 Ind. 451, p. 91. 
Anderson v, Buckton, 1 Str. 192, p. 4. 
V. Hill, 12 Smedes & M. 679, 

p. 278. 
V. Walter, 34 Mich. 113, p. 
Andre v. Johnson, 6 Blackf. 375. 
Andrews v, Morris, 1 Q. B. 3, p. 220. 
Ankin v. Woodward, 6 Whart. 677, p. 

Annapolis Co. v. Gantt, 30 Md. 116, p. 

Anon. 3 Atk. 644, p. 209. 

I^fft. 390; 7 Mod. 8, p. 221. 
Godb. 40; Goulds. 88, p. 75. 
Year Book, 13 Henry VII, fol. 

10, pi. 10, p. 56. 
Freem. 277, p. 68. 
Style, 49; 1 And. 268, p. 76. 
Style, 70, 392 ; 3 Lev. 231 ; 
Goulds. 25; 2 BrownL 84, pp. 
Ansman v. Veal, 10 Ind. 367, p. 67. 
Antoni v. Belknap, 102 Mass. 193, p. 98. 
Anthony v. Haney, 8 Bing. 187, p. 118. 
V. Lapham, 5 Pick. 11, p. 195. 
Arctic F. Ins. Go. v. Austin, 69 N. Y. 

470, p. 239. 
Arkwright v. Gell, 5 Mees. & W. 226, 

pp. 1^, 201, 203, 204. 
Armstrong v. Company, L. R. 10 Ex. 

47, p. 250. 
V. Garrow, 6 Gowen, 466, 
p. 228. 
Arnold v. Commonwealth, 8 B. Mon. 

109, p. 217. 
Artz V. Company, 34 Iowa, 153, p. 274. 
Ashby V. White, Ld. Raym. 938 : 1 Sal^. 
19; 8 State Trials, 89; pp. 
3, 10, 211. 
Ashley v. Harrison, Peake, 193; 1 Esp. 
48 p 234. 
V. Port Huron, 35 M^ch. 296, 

p. 202. 
t;. Wolcott, 11 Gush. 192, pp. 
139, 201. 
Ash worth v, Stanwix, SO Law J. Q. B. 

183, p. 266. 
Aspden v. Seddon, L. R. 10 Gh. Ap. 

m, p. 128. 
Assop V, Yates, 2 Hurl. & K. 770; 27 
I^aw J. Ex. 166, p. 261. 



Aston V. Blagrave, 3 Lev. 30; 3 Mod. 

26, pp. 74. 76. 
AtkiDB V. Gamble, 42 Gal. 99, pp. 100, 

104, 109, 110. 
Atkinson v. Company, 12 Kan. 354, p. 

Attorney-General o. Briant, 15 Mees. 

& W. 185. p. 18. 
Attorney -General v. Chambers, 12 

Beav. 157, p. 132. 
Attomey-Oeneral v. College, 30 L. J. 

Cli. 7U9, p. 22. 
Attorney-General v, Glllett, 56 111. 132, 

p. 12. 
Attorney-General v. Hudson, 1 Stockt. 

26, p. 02. 
Attorney-General v. IXKikwood, 9Mee8. 

& W. 401, p. la 
Attorney-General V. Middleton, 3 Hurl. 

& N. 138, p. 19. 
Attorney -General v. Patterson, 1 

Btockt. 624, p. 62. 
Auberry v. James, 1 Vent. 70. p. 42. 
Auditor t;. Atchison &c. 6 Kan. 500, p. 

Aurora v. Gillett, 56 111. 132, p. 202. 
Aurora &c. v. Grimes, 13 111. 585, p. 238. 
Aurora v. Reed, 57 111. 29, 30, pp. 12, 13, 

Austin V. Debnam, 3 Bam. & C. 139, p. 

Avery v. Cheslyn, 3 Ad. &. £1. 75, p. 98. 
Ayer v. Craven, 2 Ad. & £1. 2. p. 74. 
Ayers v. Grider, 15 111. 37, p. 70. 
Ayrton r. Abbott, 14 Q. B, 1, p. 209. 
Ayres v. Covill, 18 Barb. 260, p. 66. 

Babcock v. Company, 5 C. E. Green, 

296, p. 59. 
Bachelder v. Heagan, 18 Me. 32, p. 236. 
Bacon v. Markley, 46 Ind. 116, p. 282« 
r. Towne, 4 Cush. 217, p. 89. 
. Bailey v. Wiggins, 5 Harris, 462, p. 209. 
Baird V. Moxtord, 29 Iowa, 531, p. 239. 
Balrd v. Wmiamson, 15 C. B. N. 8. 376; 

33 L. J. N. S. C. P. 101, pp. 137. 143. 
Baker v. Bolton, 1 Camp. 493, pp. 32, 33. 
V. Boston, 12 Pick. 184, p. 197. 
V. State, 27 Ind. 485, pp. 210, 223. 
Baldwin v. Hayden. 6 Conn. 453, p. 36. 
V. Marshall, 2 Humph. 116, p. 
Ball V. Bridges, Cro. Eliz. 746, p. 67. 
V. Nye, 99 Mass. 582, pp. i;>7, 138. 
17. Rav, L. B. 8 Ch. 467, p. 58. 
Ballacorkish &c. Co. v. Harrison, L. B. 

5 P. C. A. 49; 8 Moak, 88. p. 144. 
Balston v. Bensted, 1 Camp. 463, pp. 

164, 171, 175, 184, 190. 
Baltimore & O. B. v. Fitzpatrick, 36 

Md. 32, p. 239. 
Baltimore &c. v. Mulligan, 45 Md. 486, 

p. 243. 
Baltimore Co. v. State, 41 Md. 268, p. 

Bamford v, Tumley, 3 Best & Smith, 
62, p. 68. 

Banfield v. Lincoln, Freem. 278. p 65. 
Bankart v. Houghton, 27 Beav. 426; 28 

L. J. N. S. Ch. 473, p. 145. 
Bank v. Marston, 7 Ala. 106, p. 229. 

o. N. £. Bank, 11 How. 240. p. 
Barber v. Arrostead, 10 Ired. 690, p. 49. 
Bard v. Yohn, 26 Pa. 482, pp. 266, &r. 
Barger v. Barger, 18 Pa. 489, p. 70. 
Barham v. Nethersal, 4 Rep. 20a, p. 66. 
Barker v. Green, 2 Bing. 317, p. 216. 
V. Ringrose, Popli. 184, p. 76. 
V. Savage, 45 N. Y. 191, p. 274. 
Barley v, Walford, 9 Q. B. 197, p. 280. 
Barnard V. Campan,29Mich. 162. p. 226. 

V. Poor. 21 Pick. 378, p. 236. 
Bamardiston v. Soame, 6 St. Trials, 

1063, p. 207. 
Barnes v. Foley, 1 W. Blai^ 643^ p. 228. 
17. Martin, 15 Wis. 240, p. Sf. 
V. 6abron« 10 Nev. 217, p. 188. 
t;. Ward, 9 Com. B. 392, p. 23. 
Bamett v. Stanton, 2 Ala. 181, p. 28a 
Barrington v. Turner, 3 Lev. 28, p. 96. 
Barron v. Mason, 31 Vt. 189. pp. 89, 91. 
Barrows v. Carpenter, 1 Cliff. 204, p. 77. 
Barry v. Allen, 8 Allen, 127, p. 197. 

V. Amaud, 10 Ad. & £. 646, pp. 
Bartlet v. Crozier, 17 Johns. 439, re- 
versing S. C. 15 Johns. 250, pp. 228, 

Bartley v. Richtmyer, 4 N. Y. 38, p. 48. 
Barton v. St. Louis & Iron IbL R. Co. 52 

Mo. 263, p. 274. 
Bartonshill Coal Co. v. Maguire, 3 

Macq. 300, p. 261. 
Bartonshill Coal Co. r. Reid, 3 Macq. 

266, 294, pp. 30, 262, 266, 261, 264. 
Bartonshire &c. v. McGuire, 3 Macq. 

300, p. 30. 
Bassett v. Company, 43 N. H. 569, pp. 

138, 161, 177, 184, 191. 
Basten v. Carew, 5 Bam. & C. 652; 5 

Dowl. & R. 558, p. 209. 
Baum 17. Clause. 5 Hill, 199, pp. 76, 77. 
Baylis r. Strickland, 1 Scott 14 . R. 540, 

p. 209. 
Bealey v. Shaw, 6 East, 208, p. 196. 
Beard v. Murphy, 37 Vt. 99, p. 131. 
Beatty v. Gilmore, 16 Pa. 463, pp. 239, 
r. Perkins, 6 Wend. 382, p. 221. 
Beauchamp v. Croft, Kellw. 26, p. 90. 
Beaulieu v. Portland, 48 Me. 291, pp. 

256, 261. 
Beaurain v. Scott, 3 Camp. 388^ p. 208. 
Beckwith t7. Philby, 6 Barn. & C. 636, p. 

Bedell v. Company, 44 N. Y. 367, p. 238. 
Bedford t>. Bagshaw, 4 Hurl. & N. 638, 

pp. 116, 278, 283. 
Beers v. Company, 19 Conn. 660, p. 239. 
Behn t7. Kemble, 7 Com. B. N. S. 260, 

pp. 279, 280. 
Behrens t7. McKinzie, 23 Iowa, 343, p. 32. 
Belair t7. Company, 43 Iowa, 662, pp. 

Belcher t;. Farrar, 8 Allen, 326, p. 197. 
Belk V. Broadbent, 3 T. R. 183, p. 221. 




BelUuBy v. Buoh, 16 Mees. ft W. 590, 

VP. 74, 75. 
Bell V. Byenon, 11 Iowa, 233. p. 282. 
V. Pterny, 1 Ired. 88, p. 89. 
«. Thfttcfaer, Freem. 276, p. 75. 
Bdlefofitaiiie &c v, Snyder, 24 Ohio K. 

8.671, p. 245. 
BaUefontaine & I. R. Go. v. Snyder. 18 

Ohio St. 399, pp. 31, 245. 249, 260. 
Betlefontalne &c. v. Hunter, 83 Ind. 

365, p. 245. 
BtflNUM V. Gonpany, 28 K. Y. 42, pp. 

Benedict v. GoM, 3 Barb. 459, p^ 21. 

r.WlMeler, 8 Gray. 409, p. 11. 
9. Falmer, 49 Pa. 157, p. 210. 
V. Kew Orleaoa, 14 La. An. 

120, p. 2L 
o. Whitehonae. 2 li. T. N. & 45, 
p. IS. 
fieDtOB V. Brown, 1 Sid. IBS, p. 2Ml 

V. Whitaey. Crabbe a O. 417, 
p. 42. 
Bentz r. AnMtrour, 8 Watts. & 8. 401, 

Bereicfa v. Harye, 9 Ner. 812, pp. 103, 

Berge v. Gardner, 19 Conn. 507, p. 280. 
Beseej v. Olliott, T. Raym. 4(f7, p. 38. 
Beswick o. Chappel, 8 B. Mon. 486, p. 69. 
Betts V. Trevaman, Oro. Jac. 536, p. 75. 
Berard v. Hoffman, 18 Md. 479, pp. 

206, 211. 
Bibby r. Carter, 28 I^aw J. Ex. N*. S. 

182; 3 Hurl. & N. 153, p. 135. 
Bieseigal v. New York, 33 Barb. 429, p. 

Biffeio w V. Reed, 51 Me. 325, pp. 2.')9, 245. 
Biliingsby v. Rankin, 2 Swan, 82, pp. 

217 218 
Billing V. Knight, 2 Bulst. 42, p. 66. 
Billings «. Lafferty, 31 111. 318, p. 210. 
V. Russell. 23 Pa. 189, p. 221. 
V. Wing, 7 Vt. 430, p. 68. 
Bird V. Holbrook, 4 Bing. 628, p. 40. 
V, Jones, 7 Q. B. 742, p. 52. 
V. Perkins, 33 Mich. 28. pp. 218. 221. 
Birdsey v. Butterfield. 34 wis. 52, p. 279. 
Birge v, Gardner, 19 Conn. 511, pp. 30, 

Bishop V. Schneider, 46 Mo. 472; 2 Am. 
B. 53.5; p. 227. 
V. Small, 63 Me. 12, p. 278. 
Bissell V. Baker, 19 Ark. 308, p. 29. 
Bizzell V. Booker, 16 Ark. 308, p. 3. 
Blades v. Higgs, 30 Law J. Com. P. 347; 

12 Com. B. N. S. 50:5. p. 36. 
Blair v. Sharp, Breese, 11, p. 69. 
Blake r. Jerome. 14 Johns. 406, p. 118. 
Blakemore v. Company, 8 £1. & B. 1051, 

p. 4, 
Blakely &. LeDuc, 19 Minn. 187, p. 239. 
Blanchard v. Baker, 8 Greenl. 253, p. 

Blaymire v. Haley, 6 Mees. & W. 55, 

p. 47. 
Bliss V. Kennedy, 43 III. 68. pp. 194, 196. 
17. Kingdom. 46 Cal. 651, p. 206. 
V. Greely, 45 N. Y. 671, p. 16*i. 
Blood r. Sayre, 17 Vt. 609, pp. 207, 211. 

Bloss v. Toby, 2 Pick. 320, p. 66. 
Blyth u. Topham, Cro. Jac. 158, p. 14. 
Bod well V. Osgood, 3 Pick. 379, p. 89. 
Bogert V. Phelps, 14 Wis. 88, p. 221. 
Bolano v, R. R. 36 Mo. 490, p. 31. 
Boland v. Company, 36 Mo. 484, p. 250. 
Bolch V. Smith, 31 Law J. Q. B. 201, p. 

Boldroe v. Porter, Yel. 22, p. 66. 
Boldt V. Company, 18 N. Y. 482, p. 257. 
Bolton V. Crowther, 2 Bam. & C. 708, 
p. 12. 
9. Crowther, 4 Dowl. & R. 195, 
p. 21. 
Boaoiii V. Backhouse, 96 Bng. O. L. B. 

622; 9 H. L. Cas. 503, p. 130. 
Boobler v. Boobier, 39 Me. 406, p. 94. 
Bootbby v. Company, 51 Me. 318, p. 181. 
Bosd V. Company, 2 Har. 314, p. 21. 
Boston &c. Company v, Boston &c. 
Company, 16 Pick. 512; S. C. 23 Pick. 
360, p. 21. 
Boston & R. M. D. Corporation v. New- 
man, 12 Pick. 467, p. 21. 
Boston &c. V. Dana, 1 Gray, 83, p. 33. 
Botsford V. Wilson, 75 111. 132, p. 281. 
Bottoms V. Mithvin, 26 Ga. 481, p. 217. 
Bonlton v. Crowther, 2 Barn. & Q. 706, 

pp. 19, 62. 
Bovill V, Pimm, 11 Ex. 718, p. 96. 
Bowling V. Arthur, 34 Miss. 41, p. 229. 
Bowlsby V. Spear, 31 N. J. 351, p. 139. 
Boyd V. Cross, 85 Md. 194, pp. 89, 90. 
Boyle V. Brandon, 13 Mees. & W. 738» 

pp. 48, 2m. 
Bradley, Ex parte, 7 Wall. 364, p. 211. 
Bradley t7. Carr, 3 Scott N. R. 521, p. 
V. Fisher, 13 Wall. 335, pp. 209, 

211, 214. 
17. Fuller, 118 Mass. 239, p. 278. 
t7. Heath, 12 Pick. 163, p. 84. 
V. Poole, 98 Mass. 169, p. 278. 
17. Wyndham, 1 Wils. 44, p. 
Bradshaw v. Walker, Hob. 249, p. 68. 
Bradt v. Tow ley, 13 Wend. 253, pp. 72, 

Brady v. Wilson, 4 Hawks, 94, p. 68. 
Brainard t7. Head, 15 La. An. 489, pp. 

218, 221. 
Brahan v. Ragland, 3 Stewt. 247, p. 286. 
Braveboy t7. Cockfleld, 2 McMull 270, 

p. 89. 
Bray v. Hayne, Hob. 76, p. 75. 
Breed t7. Conlev, 14 Iowa, 269, p. 227.' 
Brettun t7. Antnony, 103 Mass. 37, p. 66. 
Brewster v. Hartley, 37 Cal. 15, p. 115. 
17. Sime, 42 Cal. 139, pp. 101, 
103, 111, 113, 114. 
Brickner i7. Company, 49 N. Y. 672, p. 

Bridenbecker v. Lowell, 32 Barb. 17, p. 

Bridge t7. Company, 3 Mees. & W. 244, 

p. 240. 
Briggs t7. Ewart, 51 Mo. 245 ; S. C. 11 

Am. R. 445; p. 286. 
Briggs' Case. Godb. 157, p. 66. 
Brill t7. Flagler, 23 Wend. 354, p. 97. 



Brinkmeyer v. City, 29Ind. 187, pp. 24, 

Bristol V, Braidwood, 28 Mich. 191, p. 

Brite'v. GUI, 2 Mon. 65; 6 Ibid. laO, p. 


Broad v. Ham, 5 Bing. N. C. 722. p. 89. 

Broadbent v, Ramsbothaxn, 25 Law J. 

K. S. Ex. 115; 11 Ex. 602, 369, pp. 138, 

157, 158, 163, 170, 173, 189, 192. 

Broder v. Natoma W. & M. Go. 50 Gal. 

621, p. 206. 
Broderick v. James, 3 Daly, 481, p. 65. 
Brodie v. Butledge, 2 Bay, 69, p. 209. 
Bromley v. Goxwell, 2 Bos. & P. 438, p. 
V. Wallace, 4 Esp. 27, pp. 60, 
Bronson v. Southberry, 37 Gonn. J99, 

pp. 31, 249. 
Brooks v. Buffalo &c. 25 Barb. 600, 313, 
p. 243. 
V. Hamilton, 15 Minn. 26, p. 281. 
Brookes' Gase, Hut. 14, p. 75. 
Brook V. Montague, Gro. Jac. 90, pp. 

83, 86, 87. 
Brookman v. Kothschild, 3 Simmons, 

6 Bpg. Gh. 153, p. 108. 
Brown v. Best, 1 Wils. 174, pp. 174, 204. 
v. Garpenter, 26 Vt. 638, p. 97. 
V. Gollins, 53 K. H. 442, p. 29. 
V, Gompany, 58 Me. 384, pp. 249, 

260, 274. 
V. Gompany, 23 Minn. 166, p. 245. 
V. Gompany, 3 Hurl. & G. 511, 

p. 258. 
V. Gompany, 3 Hurl. & N. 511, 

p. 261. 
V. Gompany, 50 Mo. 461, pp.241, 

V. Gopley, 8 Scott N. R. 530, p. 

V. Gunamings, 7 Allen, 507, p. 

V. Dula, 3 Murph. 574, p. 70. 
V. Giles, 1 Gar. & P. 118, p. 119. 
V. Howard, 14 Johns, 119, pp. 

V. Illius, 27 Gonn. 84 ; S. G. 25 
Gonn. 583, pp. 153, 161, 185, 
V. Kendall, 6 Gush. 292, p. 270. 
17. Leach, 107 Mass. 364, p. 281. 
V. Mason, 40 Vt. 157, p. 220. 
V. Maxwell, 6 Hill, 6Se, pp. 239, 

V. Piner, 6 Bush, 518, p. 71. 
V. Bobins, 4 Hurl. & N. 186, pp. 
131, 134. 
Brownlow v. Board, 31 Law J. Gom. P. 

140, p. 62. 
Brough V. Dennison, Goulds. 143, pi. 

68, p. 65. 
Brouffhton v. Jackson48 Q. B. 383,p. 66. 
Brouker's Gase, Godb. 284, p. 76. 
Bryant v, Jackson, 6 Humph. 199, p. 29. 
Brydon v. Gampbell, 40 Md. 331, p. 226. 
Buck V. McGaughtry, 5 T. B. Mon. 221, 

p. 281. 
Buell V. Ball, 20 Iowa, 282, p. 223. 

Bulkeley v. Smith, 2 Duer, 271, p. 89. 
BuUatd t7. Harrison, 4 Maule & S. 393, 

p. 18. 
Bullitt V. Glement, 16 B. Mon. 193, pp. 

208, 211. 
Bullock V. Babcock, 3 Wend. 391, p. 32. 

V. Koon, 9 Gowen, 30, p. 72. 
Bundy v. Hart, 46 Mo. 460, p. 66. 
Burbank v. Horn, 39 Me. 233, p. 71. 
Burder v. Veley, 12 Ad. & E. 247, p. 19. 
Burge V. Underwood, 6 Gal. 45, p. 206. 
Burgess v. Gray, 1 Gom. B. 678, p. 268. 
Burbaus v. Sanf ord, 19 Wend. 417, p. 91. 
Burke v. Gompany, 49 Barb. 629, p. 249. 
V. Gompany, 34 Gonn. 474, p. 265. 
Burlington v. Gilbert, 31 Iowa, 366, p. 

Buriiap v. Wright, 14 HI. 301, p. 236. 
Bumard v. Haggas, 14 Gom. B. N. 8. 

46, p. 31. 
Burnett v. New Orleans, 14 La. An. 120, 

p. 24. 
Bumham v. Stevens, 33 N. H. 247, pp. 

210, 211. 
Bums 17. Gompany, 101 Mass. 60, p. 248. ^ 

V, Erben, 40 N. Y. 463, p. 66. 
Burroughs v. Gompany, 15 Gonn. 124, 

pp.21, 238. 
Burton v. Fulton, 49 Pa. 151,pp. 215, 218. 
V. Stewart, 3 Wend. 239, p. 115. 
Burrt?. Mills, 21 Wend. 290, p. 197. 
Bury V. Ghappell, Goldsb. 135, p. 76. 
Buron r. Denman, 2 Ex. 167, p. 229. 
Bush V. Johnston, 23 Pa. 209, p. 244. 
V. Pettibone, 4 Gomst. 300, p. 32. 
V. Smith, T. Jpnes, 167, p. 68. 
t7. Steinman, 1 Bos. & P. 404, pp. 
Busst V. Gibbons, 30 Law J. Ex. 75, p. 

Butcher v. Butcher, 7 Bam. & G. 399, 

p. 120. 
Butler 15. Gams, 37 Wis. 61, p. 286. 

V. McLellan. 1 Ware, 219, p. 42. 

r. Peck, 16 Ohio, K. S. 334, p. 202. 

Butterfield v. Forrester, 11 East, 60, p. 

Button 17. Gompany, 18 N. Y. 248, p. 246. 

t7. Hayward, 8 Mod. 24, p. 65. 
Buzzell V, Gompany, 48 Me. 117, pp. 

247, 248, 262. 
Byers v. Daugherty, 40 Ind. 198, p. 286. 
Byne v. Moore, 5 Taunt. 187, pp. 89, 90. 
Bynlon v. Trotter, Style, 231, p. 66. 
Byme t7. Stout, 15 111. 180, p. 96. 


Gable v. Gooper, 15 Johns. 157, p. 207. 
Gabot V. Ghristie, 42 Vt. 121, p. 285. 
Gahill V. Eastman, 18 Minn. 324, pp. 

31, 134. 
Galder t7. Halkett, 3 Moore P. G. G. 28, 

p. 208. 
Galdwell v. Brown, 63 Pa. 453, pp. 39, 

Galedonian Gompany v. Ogilyy, 2 Macq. 

246, pp. 62, 63. 
Galiford v. Knight, Gro. Jac. 514, p. 76. 



Callahan v. Bean. 8 Allen, 401, p. 200. 
V. Warne, 40 Mo. 131, pp. 273, 
Callender v. Marsh, 1 Pick. 418, pp. 21, 

Campbell v. Fleming, 1 Ad. & E. 40, 
pp. 115. 278. 
r. Rogers, 2 Handy, 110, p. 

V. Spottlflwood, 3 Heat & 
Smith. 770, p. 81. 
Camp V. Martin, 23 Conn. 89, p. 76. 
V, Mosely, 2 Fla. 171. p. 215. 
Canada r. Southwick, 16 Pick. 560, p. 

Canefox v. Crenshaw, 24 Mo. 199, p. 97. 
Cannon v. Phillips, 2 Sneed. 185, p. 72. 
Cardinal v. Smith, 109 Mass. 158, p. 89. 
Carl P. Ayers, 53 K £. 14, p. 89. 
Carle's Case, Oodb. 181. p. 65. 
Carlock t». Spencer, 7 Ark. 12, p. 69. 
Carmichael v. Shield. 21 Ind. 66, p. 70. 
Carratt o. Morley, 1 Q. B. 18, p. 208. 
Carrig v. Dee, 14 Gray, 583, p. 61. 
Carry v. Company, 1 Cash. 475. p. 32. 
Carr v, Clarke, 2 Chit. 2(K), p. 45. 
1% Hood. 1 Camp. 355. p. 79. 
Caralake v. Mapledoram, 2 T. K. 473, p. 

Garstairs v, Taylor, Law R. 6 Ex.'217, 

pp. 27, 143. 
Carter v. Town, 108 Mass. 507, p. 272. 

V. Walker, 2 Rich. 40, p. 116. 
Case r. Bonghton, 11 Wend. lUi, p. 280. 

V. Buckley. 15 Wend. 327, p. 67. 
Cassabilly V. Brit. 1 Sid. 16, p. 66. 
Castle r. Duryee. 2 Keyes, 169, p. 269. 
Castleman v. Hobbs, Cro. Eliz. 428, p. 

Caswell V. Wo»th, 5 El. &; B. 549, p. 239. 
Cave 17. Mountain, 1 Alan. & 6. 25^, p. 

Central &c. r. Van Horn, 38 N. Y. 133, 

p. 243. 
Chamberlain r. Bell. 7 Cal. 2Si2, p. 227 
Chambers v. Bedell, 2 Watts & S. 226, 
p. 118. 
r. CaulHeld. 6 East, 244. p. 

V, White, 2 Jones(N.C.)383, 
p. 67. 
Champaign &c. v. Smith, 7 Ohio N. S. 

42, pp. 215, 216. 
Chandler t. Rowland, 7 Gray, ."548, p. 

Chapman v. Company, 55 N. Y. 679, pp. 
•257. 2<51. 
V. Company, 19 N. Y. 341, p. 

V. Rose, 56 N. Y. 137 ; S. C. 15 

Am. K. 401, p. 285. 
f . Pickersgill, 2 Wils. 145, p. 
Charless r. Rankin, 22 Mo. 38S,,p. 131. 
Chase v. Company. 24 Barb. 273, p. 240. 
V. Fish. 16 Me. i;J2, p. 55. 
V. IngallH, 97 l^lass. 524. p. 220. 
V, Jeflferson, I Houst. 257, p. 120. 
V. N. Y. &c. 24 liarb. 273, p. 24<i. 
V. Silverstone, 62 Me. 175, p. 154. 

Chasemore r. Richards, 7 H. L. Cas. 
349; 2 Hurl. & N. 168, pp. 12, 158, 160, 
161. 162, 184, 185, 188. 
Chatfleld v. Wilson, 31 Vt. 368, p. 193. 
V. Wilson, 28 Vt. 49; 8. C. 
31 Ibid. 368, pp 161, 162, 
184, 188. 195, 196. 
Chegary v. Jenkins. 6 N. Y. 376, p. 66» 
Cherry v. Stein, 11 Md. 1, p. GO. 
Chicago &c. v. Damerell, 81 111. 461, p. 

Chicago V. Dermody, 61 111. 4.^, p. 26t 
Chicago &o. v. Dickson. 63 111. 151; S. 

17. Donahue, 75 111. 106, pp. 
242 248. 
Chicago Co. v. George, 19 Dl. 510, p. 

Chicago & Alton R. R. Co. 17. Gregory, 

58 in. 226. pp. 30, 250. 
Chicago V. Harney, 28 Ind. 28, p. 264. 
Chicago &c. v. Harwood, 80 111. 88, p. 

V. Jackson, 56 HI. 492, p. 
Chicago Company v. Murphy, 53 Dl. 

336, pp. 267, 261. 
Chicago V. Robbins, 2 Black. 418, p. 
V. Starr, 42 III. 174, p. 260. 
Chicago &c. v. Van Patten, 64 111. 510, 

p. 272. 
Child V. Boston. 4 Allen, 41, p. 197. 
Childers v. Wooler, 29 Law J. Q. B. 

129; 2 El. & B. 287, pp. 279, 280, 286. 
Choune V. Baylis, 31 I^w J. Ch. 757, p. 

Christie v. Cowell, Peake, 4, p. 69. 
Christy v. Cummins, 3 McLean, 386, p. 

Chubb V. Flannagan, 6 Car. & P. 431, 

p. 73. 
Cliune 17. Pyot, 1 Rolle R. 237, p. 55. 
Churchhill v. Cburchhill, 12 Vt. 661, p. 
V. Siggers, 3 El. & B. 929, p. 
Cincinnati Co. r. Rogers, 24 Ired. 103, 

p. 247. 
Cincinnati Gazette Co. v Timberlake, 

10 Ohio St. 548, pp. 80, 88. 
Citizens' Bank r. First Na'tl. Bank L. 

R. 6 H. L, ,'»2, p. 279. 
City r. Gilmer. 3;i Ala. 116, p. 13. 
t;. Ruby, 8 Minn. 169, p. 31. 
t;. Vanacker. Carth. 483,- p. 29. 
Clark 17. Couroe, 38 Vt. 469, p. 161. 
V. Foot, 8 Johns. 421. p. 14. 
17. Foxcroft, 6 Greenl. 296,pp. 217, 

f7. Jjebauon, (>3 Me. 393, p. 234. 
t7. Miller, 54 N. Y. 528, p. 224. 
17. Willett, :J5 Cal. 5:*4, p. 136. 
Clarke v. Company, 41 Pa. St. 147, p. 
V. Johnson, 54 111. 296, p. 286. 
V. Spicer, 6 Kan. 440. p. 211. 
17. Taylor, 4 Ring. N. C. 654, p. 77. 
Clegg r. Deardon. 12 Q. B. 57(>; 17 Law 
J. N. S. Q. B. 23;^, p. 140. 

_t . _ 


TABLs or CASSa. 

Gleghom v. Company, 66 N. Y. 44, p. 

Cleyeland v. Company, 5 C. £. Gtomi, 
201, p 60. 
V. Company, 42 Vt. 44d, pp. 
Cl6Teland v. Bowan, 66 Pa. 393. p. 245. 
Clevaland R. B. Co. v. Keary, 3 Ohio, 

201, p. 262. 
Clinton v. Myers, 46 K. Y. 511, p. 196. 
Cloftsen V. Staples, 42 Vt. 209, p. 90. 
Clothier v. Webster, 12 Com. B. N. S. 

790, p. 63. 
Clutt«rbuck v. ChafPen, 1 Stark. 471, 

p. 73. 
Cochran v. Tober, 14 Minn. 386» pp. 61, 

66. . 

Cock V. Weatberby, 13 Miss. 333, p. 66. 
Cockroft V. Smith, 11 Mod. 43, p. 37. 
Colbert v. Caldwell, 3 Grant, 181, p. 71. 
Cole t;. Maunder, 2 BoUes Abr. 666, p. 
V. Maundy, Yin. Abr. Trespass, 
616, P. 118. 
Coleman v. Chadwick, 76 Fa. 2iS, 5B1« 

p. 130. 
Cole Silver M. Co. tt. Virginia Water 

Co. 1 8a wy. 470, pp. 154. 177. 
Coles V. Ketle, Cro. Jac. 204, p. 75. 
Collins V. Evans, 6 Q. B. 8S6, pp. Sn, 
280, 285. 
V. Hayte, 60111. 337, p. 91. 
V. MaJin, W. Jones, 304, p. 74. 
0. Rennison, Say. 188, p. 37. 
Colt V. Lewiston, 36 N. Y. 217, p. 197. 
Columbus Company v. Arnold, 31 Ind. 

174, pp. 257, 261. 
Columbus Gas Co. v. Freeland, 12 Ohio 

St. 382, p. 58. 
Combs V. Company, 102 Mass. 672; S. 

C. 3 Am. R. 606, pp. 252, 253. 
Commercial Bk. v. Kortrif^ht, 22 Wend. 

361, p. 113. 
V. Wilkins, 9 Greenl. 

28, p. 217. 
V. Vamnm, 49 N. Y. 
269, P. 229. 
Commissioners v. Babcock, 6 Oreg. 472, 

p. 227. 
V. Withers, 29 Miss. 21, 
p. 11. 
Commonwealth v. Alger, 7 Cush. 63, p. 

V. Culver, 1 Pa. L. J. 

R. 3(il, p. 83. 
V. Beed, 34 Ta. 276, p. 

V. Tewksbury, 11 Met. 
65. p. 197. 
Conger v. Weaver, 6 Cal. 648, p. 206. 
Conklin v. Thompson, 29 Barb. 218, p. 32. 
Connecticut Co. v. N. Y. Co. 26 Conn. 

271, p. 34. 
Conner v. Allen, 33 Ala. 616, p. 95. 
V. CoAn, 22 N. H. 538, p. 98. 
V. Henderson, 15 Mass. 321; 5 
Mass. 314, p. 116. 
Connolly v. Davidson, 16 Minn. 519, p. 

268, 2Bo. 
Conwell V. Voorhies, 13 01iio» 588» pi 228. 

Cook V. Association, 5 Bl. C. C. 303; p. 


V. Beal, 1 Ld. Rays. 177, p. 37. 
V. Company, 1 DenloL^n, p. 274. 
V. Palmer, 6 Bam. A C. 738, p. S2ft. 
Cooke V. Waring, 32 Law J. Ex. 202, p. 

Coombs V. Company, 102 Mass. 2^ p. 
V. New Bedford Cordage Co. 
102 Mass. 672, p. 30. 
Coon V. The Syracuse &o. 1 Sold. 492, 
p. 263. 
17. Company, 5 N. Y. 492, p. 2B7. 
Cooper V, Barber, 6 Taunt. 99, p. 181. 
V. Company, 44 Iowa, 134, p.2ft8L 
V. Lovering, 106 Mass. 79, p. 2T8. 
V. McJunkln, 4 Ind. 290. p. 3& 
V. Randall, 58 111. 21* p. 6». 
V. Smith, Cro. Jac. 423, p. €9l 
V. Utterback, 37 Md. 282, p. 9a 
Copeland «. Company, 2 Met. 440, p. 2SBL 
Copp V. Company, 6 Vroom, 17, p. 39. 
CorbT V. WeddW, m Mo. 46S, p. 286w 
Oomfoot «. Fowka. 6 Meea. ft W. 3SS^ 

Coqpore «. OgdeB, 49M. Y. SSB^pp. 98Sv 

Cotes V. Michill, 8 Lev. 20^ p. 221. 
Cotterell v. Jones, 11 Cool B« 719; Bob. 

206. p. 21A. 
Coughtry v. Compaay, 86 K. Y. IM, p. 

Counter v. Couoh, 8 Alien* 496, |^ 2nk 
Countess of Rutland's Case, 6 RefK 54a, 

p. 221. 
County Comniasloiken «. Dvckekl, 20 

Md. 468, p. ttl. 
County Commlssionen v. Oibsoiiy 36 

Md. 229^ p. 229. g 

Coupey V. Henley, 2 Bsp. 510^ p^ 6^ 
Courtwright v. »Mr River Go. 80 Cal. 

578^ p. m 
Cowles V. Dunbar, 2 Car. ft P. 98T, p. fl8w 
Cox 9. Burbridga, 13 Com. Bw H. & 418^ 
pp. 43. 287. 
V. TaVlor*s Adm. 10 B. Mon. IT, pw 

Craig V. Burnett, 32 Ala. 728^ jx 211. 
V. Company, 118 Mass. 431^ 915^ 
V. Hobbs, 44 Ind. 363, pp. 288; 281 
Crawford v. DeUiware, 7 Ohio St. 4B8i 

p. 12. 
Creswell v. SljI^i 91, p. 88L 
Crissey v. Company, 76 Pa. 88, p. 219. 
Crocker v. Company, 24 Corns. SMI, p. 
v. Crocker, 31 K. Y. 807, p. 118L 
Crockett v. Beatty. 8 HuBU>h. iOi, p. 91 
Croford v. Bliss, 2 Butefc. 1«K p. 72. 
Crompton v. Lea, Law R. 19 £q. 116; 11 

Moak. 719, p. 138. 
Crooker v. Brjgg, 10 Wead. 280, pp. 198c 

Crosb^ 17. I^ng, 12 East, 4B8» p. 20. 
Cross V. Outhray, 2 Root. 98l p. 38. 
Crump V. Lambert, L. R. 3 Xq. 408; p. 

Cuff V. Newark Company, 86 K. J. L. 

17, p. 230. 



Cail o. Newark S& K. Y. B. B. Go.» 6 

Vroon, 17, p. 288. 
Oanningham v. Lynesa, 22 M7\b. 245, p. 

V. Mitchell) 67 Pa. 78, p. 
G^nis V. Ayrault, 47*N. Y. 73, p. 138. 

V. Lyman, 24 Vt. 338, p. 227. 
CttBhman r. Byan, 1 Story, 91, p. 42. 


Dabbome v. Martin. Popli. 177, p. 66. 
Bacey v. Clinch, 1 Sid. 53. p. 68. 
Dain v. Wycoff, 7 N. Y. 191, p. 48. 
Daley v. Norwich &c. 26 Conn. 591, p. 
V. R. B. Co. 26 Conn. 59, p. 30. 
Dalyel v. Tyrer, El. B. & B. 899, p. 269. 
DanielA v. Fielding, 16 Mees. & W. 200, 

p. 215. 
I>anTiUe &c. v. Stewart, 2 Met. Ky. 

119, p. 250. 
Darling v. Banks. 14 Til. 46, p. 72. 
David V. Park, 103 Mass. 501, p. 282. 
DaTiea v. Jenkins, 11 Mees. & W. 755, 
pp. 4, 215. 
V. Mann, 10 Mees. & W. 545, p. 

V. Williams, 10 Q. B. 725, p. 47. 
DaTison «. Dnncan, 7 £1. & B. 229, p. 

DaTia v. Company, 20 Mich. 106, pp. 
249, 256. 257, 261. 
V. BTton, 7 Bing. 154, p. 98. . 
V. Fuih, 1 Greene, 407, pp. 246, 

•. Oetohell, 60 Me. 602, p. 194. 
«. Ockham. Style, 227. 246, p. 65. 
V. Beev^ 5 Ir. Com. L. 79. p. 80. 
9. RusselU 5 Bing. 364, p. 56. 
9. Winslow, 51 Me. 264, p. 194. 
r. Whitridge, 2 Strob. 232, p. 37. 
Dawkina v. Lord Planlet. L. R. 5 Q. B. 
94; S. C. 9 Best. & S. 768, 
p. 229. 
V. Lord Rokeby, 4 Fost. & F. 
806, p. 229. 
Daws V. Hawkins, 8 Com. B. N. S. 848, 

pp. 13, 18. 
Dawaon, In re, Yelv. 5, p. 66. 
Day V. Brean, 2 Mood. & R. 64, p. 73. 

V. Robia^n. 1 Ad. & B. 554, p. 66. 
Deal V. Harris, 8 Md. 40, p. 209. 
Dean v. Peal, 5 East, 45. n. 45. 
Dean of St. Asaph, Trial of, 21 How. 

St. Tr. 847 p. 87. 
DeForrest v! Wright, 2 Mich. 3fi8,p. 267. 
Degg 9. Company. 1 Hurl. & N. 773; 26 
Law J. Ex. 173, p. 265. 
V. Midland &c., 3 Jur. N. S. 395, 
p. 2(K{. 
Delaware V. Commonwealth, 60 Pa. 367, 

p. 62. 
Delegal v. Highley. 3 Bing. N. C. 950, 

p. 89. 
Delhi 9. Yonmans. 50 Barb. 316; S. C. 

45 N. Y. 382, pp. 13, 183, 192, 193. 
Demarest 9. Harring, 6 Cow. 70, p. 75. 

De Medina 9. Grove, 10 Q. B. 168, p. 215. 
De Moranda 9. Dunkin, 4 T. R. 1^ p. 

Denn v. Diamond, 4 Bam. Sc Or. 345, p. 

Dennis v. Larkin, 19 Iowa, 494, p. 235. 

Desmond 9. Brown, 33 Iowa, 13, pp. 65, 

Devitt 9. Company, 50 Mo. 302, p. 274. 
Dews 9. Riley, 11 Com. B. 434, p. 220. 
Dexter 9. Prov. Aquednct Co. 1 Story, 

387, pp. 184-^, 190. 
Dexter 9. Spear, 4 Mason, 115, p. 73. 
9. Taber. 12 Johns. 239. p. 71. 
Deyo 9. Van Valkenbnrgh, 5 Hill, 243, 

p. 54. 
IMcas 9. Lord Brougham, 6 Car. & P. 

249, p. 208. 
Dicken 9. Shepherd, 22 Md. 399, p. 74. 
Dickenson v. Watson, 2 Jones, 205, p. 

Dickey 9. Andross, 32 Vt. 55, p. 66. 

V. Company, 43 Me. 492, p. 245. 
Dickinson v. Barber, 9 Mass. 225, p. 29. 

9. City, 7 Allen, 19, p. 197. 
Dickinson 9. Grand Junction Cana^ 

Company, 9 Eng. L. & Eq. 521; 7 

Ex. 299, pp. 150, 152, 157, 159, 164, 

166, 169, 171, 172, 173, 174, 184, 186, 

Dickinson 9. Worcester, 7 Allen, 19, 

p. 138 
Dickson 9. McCoy, 39 N. Y. 400, p. 237. 
Dietz V. Langfltt, 63 Pa. 234, p. 89. 
Dilling 9. Murray, 6 Ind. 324, pp. 193, 

Dix 9. Brown, 41 Miss. 131, p. 275. 
Dixon 9. Bell, 5 Moore & S. 198, pp. 

Dixon 9. Stewart, 33 Iowa, 125, p. 71. 
Dobbs 9. Justices, 17 Ga. 624, p. 217. 
Dodd 9. Holme. 1 Ad. & E. 49:), p. 135. 
Dodgon 9. Mock, 4 Dev. & B. 146, p. 97. 
Dole 9. Erskine, 35 N. H. 503, p. 37. 
Dolph 9. Ferris, 7 Watts & S. 367, p. 

Dominick 9. Backer, 3 Barb. 17, p. 216. 
Donald.son 9. Company, 18 Iowa, 280, 

pp. 33, 241. 
Donahoe 9. Richards, 38 Me. 376, pp. 
210, 222. 
9. Shed, 8 Met. 326, pp. 221, 
Donham 9. Wild, 19 Pick. 520, p. 267. 
Donnell 9. Jones, 13 Ala. 490, p. 236. 
Donovan v. City, 11 La. An. 711, p. 12. 
Dorman 9. Jacksonville, 13 Fla. 538, 

p. 11. 
Dorr 9. Mickley, 16 Minn. 20, p. 228. 
Dorwin 9. Potter, 5 Den. 306, p. 247. 
Dos well 9. Impey, 1 Bam. & C. 169, p. 

Douglas 9. Stevens, 18 Mo. 362, p. 246. 
Douglass 9. Matting. 29 Iowa, 498 ; S. 

C. 4 Am R. 238, p. 285. 
Doupe 9. Genin, 45 N. Y. 119, pp. 27, 

Dowd 9. Chicopee. 116 Mass. 93, p. 249. 
Dowell 9. General &c. 5 £1. ft B. 194, 

p. 244. 



Downing r. Herrick, 47 Me. 462, pp. 

209, 210. 
Drake v. Hudson B. R. Co. 7 Barb. 608, 
p. 8. 
V. Mount, 33 N. J. L. 441, p. 241. 
V. Wells, 11 Allen, 141, p. 117. 
Drew V. Company, 26 N. Y. 49, p. 33. 
Duberley v. Guning, 4 T. R. 651, p. 60. 
Du Boulay r. Du Boulay, L. R. 2 P. C. 

441, p. 20. 
Dudden v. Guardians, 38 Eng. L. & 

£q. 626, p. IGl. 
Duddree v. Guardians, 1 Hurl. & N. 

627, p. 185. 
Dudley v. Robertson. 2 Ired. 141, p. 65. 
Dufort V. Abadie, 23 La. An. 280, p. 

Dugdale v. Robertson, 3 Kay & J. 695, 

pp. 122, 128. 
Duggins r. Watson, 15 Ark. 118, p. 239. 
Duke c. Elgin, 7 Eng. L. & Eq. 39.p. 202. 
Dumont v. Kellogg, 29 Mich. 420, pp. 

194, 196. 
Duncan v. Bancroft, 110 Mass. 267, p. 
» 205. 

V. Findlater, 6 Clark & F. 908, 

pp. 62, 63. 
V. Randall, Het. 32, p. 196. 
Dunham v. Powers, 42 Vt. 1, pp. 78, 79. 
Dunlap V. Knapp, 14 Ohio N. S. 64, p. 
V. Snyder, 17 Barb. 661, p. 97. 
Dunnell v. Fiske, 11 Met. 651, p. 70. 
Dyer v. Talcott, 16 111. 300. p. 245. 
Dynen r. T^ach, ») Law J. Ex. 221; S. 
C. 40 Eng. L. & Eq. 491, pp. 261, 262, 
Dynes v. Hoover, 20 How. 65, pp. 215, 


Eadon v. Jeflfcock, 7 Law R. Ex. 379; 

3 Moak Eng. R. 468, p. 128. 
Eager v. Grimwood, 1 Ex. 61, p. 47. 
Earl V. De Hart, 1 Beasl. 280, p. 202. 
Earl of Glasgow v. llurlet Alum Co. 

8 Eng. Law & Eq. 13, p. 126. 
Eckhart v. Wilson, 10 Serg. & R. 44, 

p. 67. 
Eden v. Company, 14 B. Mon. 204, pp. 

32 33. 
Edick V. Crim, 10 Barb. 446, p. 280. 
Edsall r. Brooks, 17 Abb. Pr. 227: 26 
How. Pr. 4'i(), p. 8«. 
V. Russell, 4 Maen. & G. 1090, 
p. 76. 
Edwards v. Howell, 10 Ired. 211, p. 74. 

V. Wooten, 12 Co. 35, p. ♦i6. 
Eglinton v. Annsell, Godb. 88, p. 76. 
Eleanor, The, 2 Wheat. 368, p. 8. 
Ellington v. Ellington, 47 Miss, 329, pp. 

44 48. 
Elliott V. Company, 10 Cush. 191, pp. 
193. 196. 
V, N. E. R. R. Co. 10 H. L. Cas. 
333; 32 Law J. Ch. 402; 2 
De Gex F. & J. 423; 30 Law 
J. Ch. 160; 1 Johns. & H. 
145, p. 133. 

Elliottsoo V. Feetham, 2 Bing. (K. C.) 

134 P. 145 
Ellis V Andrews, 56 N. T. 83; S. C. 15 
Am. R. 379, pp. 285, 278. 
V. City, 29 Iowa, 22», p. U. 
V. Duncan, 21 Barb. 230, pp. 152, 

161. 177, 184, 186, 187, 189. 
V. Schmoeck, 6 Bing. 621, p. 116. 
o. Sheffield Gas Co. 2 El. & B. 767. 
p. 269. 
Ely v. Stuart, 2 Md. 406, p. 281. 

V. Thompson, 3 Marsn, 76, p. 209. 
Embrey t7. Owen, 6 Ex. 353, pp. 16, 163, 

174, 193, 195. 
Emery v. Lowell, 104 Mass. 13, p. 197. 
V. Lowell, 109 Mass. 191, p. 69. 
Emmerling r. Graham, 14 La. An. 389, 

p. 229. 
England v. Cowley, Law R. 8 Ex. 126, 

p. 5)4. 
Ennor r. Barwell, 3 L. T. X. S. 170, p. 

Entick V. Carrington, 19 How. St. Tr. 

106(>, p. 19. 
Erd r. St. Paul, 22 Minn. 443, p. 243. 
Erskine v. Hohnbach, 14 Wall. 613, p. 

Esmond v. Chew, 16 Cal. 137, p. 142. 
Evans v. Watson, 66 Pa. 54, p. 16. 
Evansville &c. v. Baum, 26 Ind. 70, p. 

Everett v. Company, 23 Cal. 225, pp. 

139, 143. 
Evertson v. Mills, 6 Johns. 138, p. 280. 
Ewart V. Jones, 14 Mees. & W. 774, p. 

Eyre v. Dunsford, 1 East, 329, p. 10. 


Fahn r. Reichart, 8 Wis. 266, p. 3. 
Fairbanks v. Kerr, 70 Pa. 86, p. 230. 
Fairchild v. Keith, 29 Ohio, (N. S.) 156, 

p. 219. 
Fairman v. Ives, 5 Bam. & Aid. 644, 

p. 81. 
Falkner i.'. Cooper, Cart. 55, p. 67. 
Faribault v. Sater, 13 Minn. 223, p. 281. 
Fariey v. Danks, 4 El. & B. 493, p. 91. 
Farns worth v. Storrs, 6 Cush. 412, p. 79. 
Farrand v. Marshall, 21 Barb. 407; 19 

Barb. 380, pp. 131, 132, 
Farrant v. Barnes, 11 Com. B. K. S. 

663; 31 Law .1. Com. P. 137, p. 2«)- 
Farwell v. Boston & Worcester Rail- 
road Corporation, 4 Met. 49, pp. 266, 

267, 268, 261. 
Farwell v. Company, 3 Macq. 316, p. 
. 262. 

Fatman v. Ix)bach, 1 Duer, 354, p. 113. 
Fayette v. Bush, 19 Ind. 326, p. 12. 
Fay V. Whitman, 100 Mass. 76, p. 69. 
Felch V. Allen, 98 Mass. 572, p. 264. 
Feltham v. England, Law R. 2 Q. B. 

3;^, p. 25(5. 2H1, 262. 
Fent V. Toledo &c. Company, 69 111. 

349, p. 2313. 
Fenton t*. Company, 8 Ad. & B. 835, 

pp. 268, 269. 



Ferguson v. Kinnoal, 9 Clark & F. 251, 

pp. 200, 219. 
Fernlev v. Worthington, 1 Scott, N. R. 

432, p. 209. 
Femster v. Moyer, 3 Watts & S. 416, 

p. 48. 
Fero V. Company, 22 N. Y. 209, pp. 286, 

Ferriter v. Tyler. 48 Vt. 444; 21 Am. R. 

133, p. 210. 
Field V. Company, 32 N. Y. 339, pp. 232, 

235 238. 
Field V. City. 39 Iowa, 575, p. 13. 
Fifield V. Company, 42 K. H. 225, p. 

Fifty Associates v. Tudor, 6 Gray, 259^ 

pp. 60, 61. 
4ndlaY v. 

Findlay v. Bear. 8 Serg. & R. 581, p. 66. 
Firmstone r. Wheeley, 2 Dowl. & L. 
203; 13 Law J. K. S. Ex. 361, p. 140. 
First Baptist Church v. Company, 5 

Barb. 79, p. 60. 
Fish V, Cleland. 33 111. 238, p. 285. 
Fisher v. Bridges, 4 Blatchf . 618, p. 37. 
V. Bristow, 1 Doug. 215, p. 80. 
V. Clark, 41 Barb. 329, pp. 4, 237. 
Fitzgerald v. Northcote. 4 Fost. & F. 

656, p. 38. 
Fitzjohn v. McKidder, 2 L. T. N. S. 374, 

p. 236. 
Fitzsimmons v. Cutler, 1 Aik. 33, p. 69. 
Flagg V. Worcester, 13 Gray, 601, pp. 

13, 138, 197. 
Flemming v. Ball, 1 Bay, 3, p. 42. 
Fletcher v. Company, 64 Mo. 484, p. 245. 
V. Randell, Anth. 196, p. 44. 
V. Rylands, Law K. 3 H. L. 
330; S. C. 3 Eng. & Ir. 
Appeal Cases, 330; 35 Law 
J. N. S. Ex. 154; 3 Hurl. 
& C. 773; 34 I^w J. Ex. 
117; Law B. 1 Ex.265, p. 
Fleytas v. Company, 18 La. An. 339, p. 

Flight V. Leman, 4 Q. B. 883, p. 90. 
Flike V. Company, 53 N. Y. 649, p. 257. 
Flint V. Pike, 4 Barn. & C. 478, pp. 80, 

Flower v. Adam, 2 Taunt. 314, pp. 242, 
. V. Company, 09 Pa. 210, p. 265. 
Floyd V. Barker, 12 Co. 25, pp. 210, 213. 
Foot V. Brown, 8 dohns. 64. p. 76. 
Forbes v. Parsons, Crabbe C. C. 283, p. 

Force v, Warren, 15 Com. B. N. S. 808, 

p. 65. 
Ford V. Company, 110 Ma-ss. 240; S. C. 
14 Am. R. 598, pp. 254, 266, 
V. Hopkins, 1 Salk. 283. p. 106. 
V. Monroe, 20 Wend. 210, p. 33. 
Forks Township v. King, 84 Pa. 230, p. 

Forsyth v. Hooper, 11 Allen, 419, pp. 

Fortman v. Rottier, 8 Ohio N. S. 548, p. 

Fortner r. Flamagan, 3 Port. 257, p. 221. 

Fort Wayne &;c. v. Gildersleeve, 33 

Mich. 133, pp. 253, 254. 
Forward v. Adams, 7 Wend. 204, p. 74. 
Foster t;. Browning, Cro. Jac. 688, p. 68. 
V. McKinnon, Law R. 4 C. P. 
704 P 286. 
Fos8 u. Hildretii, 10 Allen. 76, pp. 76, 77, 
Fouville V. McNease, Dudley, 303, p. 73. 
Fowler r. Hollins, X^w R. 7 Q. B. 616, 

p. 94. 
Fox V. Broderick, 14 Ir. C.L. 453, p. 73. 
Francis v. Schoelkoph, 53 N. Y. 152, p. 

Frankfort Company v. Philadelphia 

Company, 54 Pa. 345, p. 238. 
Franklin r. Smith, 21 Wend. 623, p. 229. 
Fraser v. Freeman, 43 JJ. Y. 566; S. C. 

3 Am. B. 740, p. 266. 
Frasier v. Brown, 12 Ohio, 294, pp. 161, 

177, 183, 189. 
Fray v. Blackburn, 3 Best & Smith. 576, 

p. 214. 

Frazer v. Company, 38 Pa. 104. pp. 248, 

252. 257. 

V. Berkley, 7 Car. & P. 621, p. 15. 

Freeh r. Company. 39 Md. 574, p. 245. 

Freeman v. Cornwall, 10 Johns. 470, p. 

Freemantle v. Company, 100 E. C. L. 

88, p. 236. 
Freeport i?. labell, 83 III. 440, p. 224. 
V. Marks, 59 Pa. 263, p. 223. 
Friend r. Hamill, 34 Md. 2<.»8. p. 211. 
Frierson v. Hewitt, 2 Hill, (S. C.) 499, 

p. 89. 
Frith V. The Elizabeth, Blatchf. & H. 

195, p. 42. 
Frost r. Beekman. 1 Johns. Ch. 288; S. 

C. 18 Johns. 514, p. 226. 
Fnllam v. Stearns, 30 Vt. 443, p. 15. 
Fullen wider v. Mc Williams, 7 Bush. 

389, p. 91. 
Fuller V. Colby, 3 Wood. & M. 6, p. 42. 
V. Company. 16 Gray, 43, p. 196. 
t'. Fenner, 16 Barb. 333, pp. 72, 
Pullman r. Stearns. 30 Vt. 443, p. 220. 
Fulton V. Hood, 34 Pa. 365, p. 285. 
V. Staats, 41 K. Y. 498, p. 52. 


Gahagan v. Company, 1 Allen, 187, pp. 

239 243. 
Gahan v. Lafitte, 5 Moore P. C. C. 382, 

p. .211. 
Galena &c. t^. Dill, 22 HI. 264, p. 245. 
Galena Co. v. Vandergrift, 34 Mo. 55, 

pp. 273, 275. 
Gallagher v. Pifer, 16 Com. B. N. S. 

669, p. 2(31. 
Gallagher v. Piper, 33 Law J. Com. P. 
, 329, p. 262. 
Gallwey v. Marshall, 9 Ex. 294, pp. 74, 

Gamble v, Jenny. 2 Keb. 494, p. 66. 
Gaudy v. Company, 30 Iowa, 420, p. 238. 
Gannon v. Company, 112 Mass. 234, p. 




Gannon v. Hargadon, 10 Allen, 106, p. 

Garland v, Carlisle, 2 Cromp. & M. 77; 

8. C. 4 Clark & F. 701, p. 17. 
Garlingbouse v. Jacobs, 29 K. Y. 297, 

p. 24. 
Gannon v. Bangor. 38 Me. 443, p. 243. 
Gamett v. Ferrand, 6 Bain. & C. 611, 

pp. 208, 209. 
Garr v. Selden, 4 N. Y. 91, pp. 78, 83, 84, 

Garrett v. R. R. 6 Gray, 64, p. 239. 
Gautret v. Egerton, Law Rep. 2 C. P. 

371, p. 23. 
Gavel V. Martyn, 19 Com. B. N. S. 732, 

p. 12. 
Gay V. Winter. 34 Cal. 153. p. 239. 
Gaylor v. Hunt» 23 Ohio N. 8. 255, p. 

Gellett V. Mason, 7 Johns. 16, p. 12. 
George, the Count Joannes t;. Burt, 6 

Allen, 336, p. 76. 
George 9. Van Horn, 9 Barb. 523, p. 44. 
Gerety v. Company, 81 Pa. 274, p. 245. 
Gerrard v. Davis, 53 Mo. 932^^. 225. 
Gerrish v. Company, 30 N. H. 478, pp. 
193 195. 
9. Clough. 48 N. H. 9, p. 4. 
Gibbs V. Linaberry, 22 Mich. 479; & C. 
7 Am. R. 675, p. 286. 
V. Price. Style, 2:n, p. 74. 
Gibbons v. Pepper, 1 Ld. Baym. 38, p. 

Gibson v. Company, 63 K. Y. 449; 8. C. 
20 Am. R. 552, p. 253. 
V. Puchta, 33 Cal. 316, pp. 136. 
146. 147. 
Gifford V. Carvill, 29 Cal. 589, pp. 115, 

Gilbert v. People, 1 Denlo, 41, pp. 83, 

Giles V. Simonds. 16 Gray. 441, p. 117. 
Gilham v. Company, 49 111. 484, p. 138. 
Gillenwaier v. Company. 5 Ind. 340, pp. 

268 264. 
Gillett i\ Johnson, 30 Conn. 180, pp. 

Gillshannon «. Stony Brook &c, 10 

Cnsh. 228. pp. 228. 266. 267, 263. 
Oilman v. Eastern R. R. Co. 10 Allen, 
233, pp. 39. 249. 256, 261. 
V. Emery. 64 Me. 460, p. 98. 
Gilpin V. Howell. 6 Pa. 42, p. 110. . 
Glasgow V. Kowse. 43 Mo. 479, p. 218. 
Glassey v. Hestonville, 67 Pa. 172, p. 

250. : 

Godfrey v. Owen. Poph. 148, p. 75. 

Godsel V. . Winch, 90, p. H6. 

Goetchens v. Matthewson, 61 N. Y. 420, 

p. 211. 
Goggans v. Monroe, 31 Ga. 331, p. 91. 
Gold v. Bobbins, Yel. 145. p. 68. 
Good v. French. 115 Mass. 201, p. 89. 
Goodale v. Tuttle. 29 N. Y. 466, pp. 13, 

184, 189, 192. 201. 
Goodenow v. Tappan, 1 Ohio, 60, p. 78. 
Goodman r. Taylor, 5 Car. & P. 410, p. 

Goodyear v. Railroad. 2 Wall. C. C. 

366, p. 26. 

Gordon v. Spencer, 3 BUckf. 286, p. 

Gore V. Martin, 66 N. C. 371. p. 318. 
Gorham v. Gale. 7 Cowen. 739l p. 228. 
Gormley v. Sanford. 52 HI. 158, p. 138. 
Gorton v, De Angelis, 6 Wend. 418, p. 
ft. Frizxel, 20 HI. 191, p. 222. 
Gosling V. Veley, 12 Q. B. 407 ; S. C. 4 

House of Lords Cas. 727, p. 19. 
GoBzler v. Geoigetown, 6 Wheat 583^ 

p. 12. 
Gould v. Booth, 66 N. Y. 62, p. 202. 

V. Christianson. Blatchf. & H. 

521, p. 42. 
If. Company, 13 Gray, 442, pp. 

194 191. 
V. Oliver, 2 Scott N. R. 257; 4 
Bam. ft C. 142, p. 22. 
Governor &c. v. Meredith, 4 T. R. 794, 

p. 21. 
Grace v. Mitchell, 31 Wis. 588, p. 221. 
Graham v. Smith, 1 Edm. Sel. Cas. 267, 

p. 50. 
Grand &c. Company v, Shugar, L. R. 

6 Ch. 483. pp. 161. 177. 
Grant «. Allen, 41 Conn. 166, p. 188. 
V. Bailey. 12 Mod. 440, p. 43L 
Graves v. Otis, 2 Hill, 466, pp. 11, 21. 
Gray v. Company, 65 N. Y. 561, p. Sia. 
V. Parlande. 51 N. Y. 434, p. 44. 
V. Harris, 107 Mass. 492, p. 138. 
V. Kimbal, 42 Me. 299, p. 215. 
9. Pentland, 2 Serg. & R. 23, p. 8L 
Grear v, Marshall, 4 Foat. & F. 486, p. 

Great N. R. t. Harrison, 10 Ex. 876, p. 

Greatrex tn Hayward, 8 Ex. 300; 20 

Eng. L. St Eq. 377, pp. 202, 205. 
Greely v. Maine Cent R. R. Co. 63 Me. 

200, pp. i:)9, 155. 
Green v. Hudson River Co. 2 Keyes, 

294, p. 31 
Green t>. Reading, 9 Watts, 382; 20 

How. 148, p. 11. 
Greene v. Warner. 3 Keb. 624. p. 67. 
Greenland r. Chaplin, 5 Ex. 243, p. 233. 
Greenleaf v. Company, 29 Iowa, 14, p. 
V. Company, 83 Iowa, 52, p. 

V. Francis. 18 Pick. 117, pp. 
165, 162. 185, 18& 
Gregory v. Brooks, 37 Conn. 365, p. 210. 
V, Brown, 4 Bibb, 28^ pp. 208» 

V. Harris, 43 Cal. 38, p. 206. 
9. Hill, 8 T. R. 399, p. 37. 
V. Thomas, 2 Bibb; 286, p. 91. 
Griffith's Case. Cro. Ella. 780, p. 67. 
Griffiths V. Gidlow. 3 Hurl. & N. 048, 

pp. 239, 248, 251, 255. 
Griffiths r. Godson, 3 Hen. & M. 313^ p. 

Griggs V. Fleckenstein, 14 Mian. 81, 
pp. 241, 375. 
V. Foot. 4 Allen, 196, p. 11. 
Grinnell v. Wells, 7 Man. k 0.1063^ 
pp. 44, 46, 47. 



Grippen v. Company, 40 N. Y. 31, p. 

Grizzle v. Frost, 3 Fost. & F. 622, p. 30. 
Gnerln v. Hunt. 8 Minn. 477« p. 21B. 
Gaeiit V. Reynolds, 68 HI. 478, p. 131. 
Gnildeslew v. Ward, Gro. £li& 225, p. 

Gttille V. Swan, 19 Jobni. 381, p. 237. 
Gnxneth v. Berry, 3 Ler. 166» p. 09. 
Guthrie v. Jonea, 108 Mass. 191» p. M. 
Gwynn v. Tamer, 18 Iowa, 1, p. 97. 
Gyre v. Culver, 47 BarU 089^ P- 30. 

HialiiM 9. Roberta, 6 SI. & B.OIft, p. IS. 
HaseO V. Groasman, 31 Ind. 223, p. 281. 
Hairtemmn v. Bruokhart, 46 Pa. 614, 

pp. 104, 161, 184. 
Haley «. Company, 21 Iowa, 16, p. 241. 
Hall V. Hatnraond, 1 Sid. 104, p. 06. 
«. Hettnesley. Cro. £liz. 480» p. 67. 
V. Johnson, 8 Hurl. & C. 689, p. 284. 
V. Johnton, 34 Law. J. Ex. 222, 
pp. 39, 267. 
Halls V. Thompson, 1 flmed«»8 & M. 443, 

p. 281. 
Hamer v. Knowles, 30 Law J. Ex. N. 

a 102; Hurl. & N. 464, p. 136. 
Hamllburgh v. Shephard, 119 Mass. 30, 

p. 89. 
Hamilton v. Anderson, 3 Macq. App. 
Can. 363, p. 208. ^ 
tr. McPherson, 28 N. Y. 72, 

p. 240. 
V. WiiliaflM, 26 Ala. 027, p. 
Hammack v. White, ll Com. B. N. 8, 

688; 31 Jjaw J. Com. P. 
129, pp. 238, 
- ll ^ - 
Mod. 219, p. 209. 
Hanoe v. Company, 26 K. Y. 428, P^240. 
Handcock v. Baker, 2 Boa» Sc P. 200, p. 

Hando v. Railroad, L. R 2 Q. B. 480ii, 

p. 268. 
Hannah v. Rust, 21 Wend. 149, p. 37. 
HanoTer R. R. Co. v. Coyte, 66 Fa. 886^ 

p. 274. 
Hanrathy v. Company, 46 Md. 280, p. 

Hanson v. McCue, 42 CaL 308^ pp. 162, 

Harbert v, Angell, Hntt. 113, p. 66. 
Hard v. Vermont *c. 32 Vt. 480, pp. 

Hardenbuzgh «. Baoon, 38 Cal. 866, p. 

Hare v. Miller. 3 Leon. 138, p. 79. 
Harlan v. St. Louis fto. 66 Mo. 22, p. 243. 
Harner s. Company, 47 Ma 067, pp. 261, 

Hammond tr. Howell, 1 Mod. 184; 2 

Haninffton v. Fuller, 18 Me. 277, p. 228. 
*- _ - I, } - 

Cord, 400, p. 210. 

Hsnlagton v. Commissioners, 3 Mc- 

HairiagtoB v. People, 6-Barb. 607, p. 37. 
Hairia v. Butler, 2 Meea. & W. 639, p. 

Harris V. Bnrley, 8 N. H. 216, p. 74. 

9. Korthem Company, 20 N. Y. 

386. p. 348. 
V. Ryding, 6 Mees. & W. 69; 8. 
C. 8L. J. N. 8. Ex. 181, pp. 
132, 128, 126. 
V, Woody, 9 Mo. 113, pp. 60, 73. 
Harrison o. Berkley, 1 Strob. 648^ p. 
V. Bush, 6 El. & B. 349, pp. 78» 

V. Stratton, 4 Esp. 218, p. 74. 
«• Thomborough, 10 Mod. 
106« p. 67. 
Hart V. Dubois, 20 Wend. 236, p. 221. 
V. Company, 13 Met. 99, pp. 232, 
Hartzall v. Sill, 12 Pa. 348, p. 194. 
Hartwell v. Armstrong, 19 Barb. 166, 

p. 62. 
Harvey v. Dunlop, Hill & D. 198, pp. 
3, 170. 
V. Martin, T. Raym. 78^ p. 76. 
V. Watson, 7 Man. & G. 044, p. 
Harwood v. Bruter, 32 Vt. 724, p. 184. 
V. Tompkins, 4 Zab.426, p. 4. 
Hastings v. Lusk, 22 Wend. 410, pp. 77, 

Haasa v. Junger, 16 Wis. 698, p. 246. 
Hatch V. Company, 26 Vt. 49, p. 21. 
V. Ijane, 106 Mass. 394, p. 81. 
V. Vermont, 2 Wms. 142, p. 62. 
Hatfield v. Roper, 21 Wend. 616, pp. 

31. 342, .249. 260. 
Hathaway r. Hinton, 1 Jones N. C. 

243^ p. 229. 
Havers v. Erie Co. 41 N. Y. 296, p. 274. 
Haverstick i*. Sipe^ 33 Pa. 368, p. 61. 
Hawk V. Ridieway, 33 111. 473, p. 62. 
Hawkins v. Hawkins, 60 Gal. 668, p. 282. 
Hawley v. Brummagim, 33 Cal. 394, p. 
V. Butler, 64 Barb. 490, p. 66. 
Hawn V. Smith, 4 R. Men. 386. p. 71. 
Hay V. Company, 2 Comst. 159, p. 139. 
V. he Neve, 2 Shaw, Scotch Ap- 
peals, 395, p. 250. 
Hay craft v. Creasy, 2 East, 106, pp. 

279. 280, 285. 
Hay den t\ Company, 29 Conn. 648, pp. 
248, 253, 257, 281. 
V. Shed, 11 Mass. 500, p. 91. 
Hayes v. Company, 3 Cush. 270, pp. 
266, 257, 262, 2H4. 
V. Waldron, 44 K. H. 680, p. 194. 
Haynes v. Sinclair, 23 Vt. 108, p. 236. 
Hays t;. Cohoes Co. 2 N. Y. 159, pp. 129, 

Heake v. Moulton, Yel. 90. p. 68. 
Hearue r. Company, 60 Cal. 482, p. 243. 
Heavilon v. Kramer, 31 Ind. 24, p. 247. 
Hedges v. Tagg. 7 Exch. 283, p. 47. 
Heermance v. Vemoy, 6 Johns. 6, p. 


Heinrichst;. Kerohner, 86 Mo. 378, p. 48. 
Heister's Lessee v. Fortner, 2 Bin. 40, 

p. 227. 
Henderson r. Broombead, 4 Hurl. & 

N. 577, p. 78. 



Henry v. Company, 8 Watts. & S. 86, 

pp. 11. 13, 21. 
Hem t7. Nichols, 1 Salk. 289, p. 285. 
Herrin v. Libbey, 36 Me. 357, p. 116. 
Herron v. Hughes, 26 Cal. 666. p. 94. 
Hetfield v. Towsley, 3 Iowa. 584, p. 200. 
Hetrich v. Deachler. (J Pa. :«, p. Igt 
Hewey v. Nonrse, 64 Me. 256, p. SMk 
Hewlett v. Cmchley, 5 Taunt. 27T, p. 90, 
Hext 0. Gill, L. R. 7 Chap. 699; 3>loak. 

574, p. 131. 
Heyden v. Company, 29 Conn. 648, p. 

Heyden and Smith's Case, 6 Coke, 486, 

p. 114. 
Heyne t;. Blair» 62 N. Y. 19. p. 90. 
Hickman v. Griffin, 6 Mo. 37, p. 89. 
Hicks' Case, Popham, 139; Hob. 215, 

p. 66. 
Higgins V. Butcher, Yel. 89, pp. 20, 33. 
Higginson r. Martin. 2 Mod. 195, p. 215. 
Hildebrand v. Company, 47 Ind. 399, p. 

Hill i. Balls, 2 Hurl. & N. 302. 371, p. 4. 
17. Charlotte, 72 N. C. 55; 21 Am. 

R. 451, p. 224. 
V. Figley. 25 111. 156. p. 218. 
V. Hayes. 'AS Conn. N32, p. 96. 
V. New Haven, 37 Vt. 501, p. 243. 
V. R. R. 11 La. An. 292, p, 2:«1. 
V. Rogers. 2 Clarke. 67, p. 38. 
HiUiard r. Richardson, 3 Gray, 349, pp. 

257 267 268. 
Hills' V. s'nell, 104 Mass. 173, p. 96. 
Hinchman v. Patterson, 2 Green, 76, p. 

Hinckley v. Emerson, 4 Cow. 351, p. 43, 
Hoaglaud v. Sacramento, April 30, 1877. 
Sup. C't. of Cal.. unreported, p. 139. 
Hoar V. Wood. 3 Met. 197, pp. 84, 87. 
Hoare »♦. Silverlock, 9 Com. B. 20. p. 88. 
Hodgeden v. Hubbard, 18 Vt. 504, p. ;*>. 
Hodges V. Windham, Peake, 39, p. 50. 
r. Westbeyer, 6 Mon. 337, p. 
Hodgkinson r. Ennor, 4 Best. & Sm. 

116 Eng. C. L. 229, p. 
V. Fernie, 2 Com. B. N. S. 

4:«, p. 229. 
r. Ix)ng Island, 4 Edw. 
Ch. 411, p. 62. 
Hodgson t'. Scarlett, 1 Bam. & Aid. 

232. pp. 83, 84. 87. 

Hoffman v. Caron, 22 Wend. 285, p. 116. 

V. St. IjOuis, 15 Mo. (>51, p. 11. 

V. Tuolumne Water Co., 10 

Cal. 413, p 143. 

Hofnagle v. Company, 65 N. Y. 608, p. 

Hogan r. Wilmoth, 16 Gratt. 80, p. 70. 
Hoggr. Ward, 3 Hurl. & N. 417, p. 55. 
Hoggatt V. Bigley, 6 Humph. 236, p. 210. 
Hoi brook v. Connor, 60 Me 576, p. 278. 
Holburn v. Ncal, 4 Dana, 120. p. 89 
Holden v. Company, .W N. H. 552, p. 
r. Shattuck, 34 Vt. i^ii), p. 237. 
Hole V, Barlow, 4 Com. B. N. S. 3:i4, p. 

Holland v. Anderson, 38 Mo. 66, p. 281. 

V. Stoner, Cro. Jac. 315. p. 68. 

Hollenbeck r. Compy, 9 Cush. 480. p. 

Holiiday v. Sterling, 62 Mo. 321, p. 91. 
Hollister v. Company, 9 Conn. 436, p. 21 . 
Hollis r. Briscoe, Yel. 64, p. GUI 
Holly V. Company, 8 Gray, 123, p. 275. 
Holmes v. Company, Law B. 4 Ex. 254« 
p. 268. 
V. Clifton, 10 Ad. & E. 673, p. 

V. Trumper. 22 Mich. 427. p. 286. 
Holroyd v. Breare, 2 Barn. & Aid. 473, 

p. 208. 
Holt V. Astrigg, Cro. .Tac. 184, p. 67. 
Hooker v. (company. 14 Conn, 146. p. 21. 
Hooksett V. Company, 38 N. H. 342, p. 

Hopkins r. Beedle, 1 Caines, 347, p. 69. 
Hopper, In re, I^aw R. 2 Q. B. 367, p. 

Horn r. Foster, 19 Ark. 346, p. 72. 
Home V. Widlake, Yel. 141, p. 23. 
Horner r. Watson, 79' Pa. 661, pp. 123, 

Horton v. Ipswich, 12 Cush. 488, p. 275. 
I'. Morgan, 19 N. Y. 172; 4 Duer, 
66, p. 110. 
Hoskins v. Tarrance, 5 Blackf . 417, p. 

Hotchkiss r. OImst«ad, 37 Ind. 74, p. 71. 
Hough t;. Dovlestown, 4 Brewst. 333, 

p. 197. 
Honlton r. Smith, 14 Ad. & E. N. a 

841, p. 207. 
Housatonic &c. v. Knowles, 30 Conn. 

313 p. 243. 
Housh V. People, 75 III. 487, p. 221. 
Housman v. Girard Buildings &c. 81 

Pa. 256. p. 227. 
Hout V. Hudson, 27 Wis. 656, pp. 138, 

Hover v. Barkhoof, 44 N. Y. 113, p. 229. 
Hovey v. Mayo, 43 Me. 322, p. 11. 
Hoveysberger v. Company, 2 Abb. 

App. Dec. 378, p. 249. 
Howe V. Newmach, 12 Allen, 49, p. 206. 
Howell V. Jackson. 6 Car. & P. 726, p. 

Howells r. Landore Steel Co. Law R. 

10 Q, B. 62, p. 261. 
Howland v, Vincent, 10 Met. 671, pp. 

Hoy I'. Sterrett, 2 Watts, 330, p. 132. 
Hubbard v. Town, :« Vt. 295. p. 61. 
Hubbell V. Meigs, 50 N. Y. 481, p. 285, 
Hubgh V. Companv, 6 La. An. 4%, p. .•t4. 
Hudson p. Ayers, 1 El. & p. 148, p. 22. 
Huffman r. San Joaquin County, 21 

Cal. 426. p. 229. 
Hull V. Blalsdell, 1 Scam. 332. p. 216. 
V. Company, 14 Cal. 887, p. 238. 
Humes v. Mayor, 1 Humph. 493, p. 11. 
Humfreys r. Mears, 1 Man. & R. 187, p. 

Humphries v. Brogden, 12 Q. B. 739, p. 

V. Brogden, 1 Eng. L. & Eq. 
251, p. 126. 



Hampbrey 0. Hathom, 24 Barb. 278, p. 

Hunt V. Bennett, 19 N. Y. 173, p. 81. 

V, Company, 51 Pa. 475, pp. 262, 

V. Company, 1 Allen, 343, p. 244. 
V. Jones, (jro. Jac. 4i^, p. 76. 
Hunter v. Mathis, 40 Ind. 3S6, p. 209. 
Hant V. Peake, 29 L. J. Ch. 785, p. 136. 
V. Silk, 5^a8t, 449. p. 116. 
w. Wotton, T. Raym. 259, p. 46. 
Hatcbinson v. Birch, 4 Taunt. 618, p. 

Hatcbinson t;. Company, 5 Ex. 343, pp. 

31, 248, 252, 257, 261, 265. 
Hutcbins v. Blood, 25 Wend. 413, p. 72. 
V. Brackett, 22 N. H. 252, pp. 
Hvatt V, Adams, 16 Mich. 180, pp. 32, 


Idol tr. Jones, 2 Dev. 162, p. 66. 

Ihl V. Forty-second St. R. Co. 47 N. Y. 

317, pp. 249, 250. 
niidge V. Goodwin, 24 En^. C. L. 272, 

p. 233. 
Illinois &c. V. Baches, 59 111. 379, p. 272. 
Illinois Central B. R. Co. v. Buckner, 28 

m. 299, p. 31. 
m. Cent. B. 17. Baches, 55 111. 379, p. 239. 
Illinois Co. v. Cox, 21 111. 20, pp. 252, 

Illinois &c. V. Downey, 18 111. 259, p. 

Illinois Co. v. Finigan, 21 HI. 646, p. 

Illinois Co. v. Gral)ill, 50 III. 241, p. 59. . 
Illinois C. B. B. v. Hall, 72 111. 222, p. 

Illinois Co. v. Jewell, 46 111. 99, pp. 248, 

Illinois Co. v. Love, 10 Ind. 554, p. 248. 
Illinois Company v. Mills, 42 III 407, 

nois &c. V, Nunn, 51 UK 78, p. 235. 
Illinois Cent. B. B. Co. v. Patterson, 

69 IlL 650, p. 248. 
Bott V. WUkes, 3 Bam. & Aid. 304, pp. 

40 244. 
Imlar v, Springfield, 55 Mo. 119, p. 13. 
Indiana Co. v, Tyng, 63 N. Y. 653, p. 

Indianapolis &c. v. Flanigan, 77 HI. 

365, p. 254. 
Indianapolis &c. v. Horst, 93 XJ. S. 291, 

p. 243. 
Indianapolis &c. v. Love, 10 Ind. 554, 

pp. 255, 257. 
Indianapolis &c. v. McClure, 26 Ind. 

370, p. 242, 
Ingersoll v. Bokkelin, 7 Co wen, 670, p. 
V. Company, 8 Allen, 438, pp. 

236. 236. 
V. Jones, 5 Barb. 661, p. 48. 
Insurance Co. v. Tweed, 7 Wall. 44, p. 

Irons V. Field, 9 B. I. 216, p. 76. 

Irow V. Company, 24 Vt. 487, p. 273. 
Isaacs V. Brand, 2 Stark. 167, p. 56. 
Ivory V. Michall, 33 Mo. 398, p. 286. 


Jacob V. Mills, Cro. Jac. 343, p. 66. 
Jacobs v. Measurers, 13 Gray, 74, p. 220. 
Jackson v. Commissioners &c. 76 N. C. 
282, p. 243. 
17. Company, 31 Iowa, 176, p. 

V. Courtenay, 8 EI. & B. 8, p. 
James v. Bntlech, 4 Bep. 17a, p. 76. 

17. Williams, 31 Cal. 211, p. 206. 
Jay 17. Almy, 1 Wood. & M. 268, p. 42. 
Jefferson ville &c. t7. Lyon, 55 Ind. 477, 

pp. 243, 245. 
Jeffries v. Aukeny, 11 OhioL372, p. 211. 
Jenkins v. Turner, 1 Ld. Baym. 109, 

p. 43. 
Jennings v. Broughton, 22 L. J. Ch. K. 
S. 583, p. 116. 
t;. Paine,4 Wi.s. 368, pp. 84, 87. 
Jennings* Lessee v. Wood, 20 Ohio, 

261, u. 226. 
Jermaine v. Waggoner, 1 Hill, 279; 7 

Hill, 357, p. 21. 
"Joannes" v. Bennett, 5 Allen, 169, p. 

Joel 17. Morrison, 6 Car. & P. 503, p. 265. 
Johnson 17. Company, 20 N. Y. 65, p. 245. 
V. Robertson, 8 Port. 486, p. 65. 
Johnstone v. Sutton, 1 T. B. 312, 513; 1 
Ld. Raym. 468, pp. 2, 208. 
17. Sutton, 1 T. R. 544, p. 229. 
Jones 17. Allen, 1 Head. 626, p. 96. 
17. Austin, 17 Ark. 498, p. 286. 
17. Bird, 5 Bam. & Aid. 837, p. 63. 
V, Hungerford, 4 Gill. & J. 402, 

p. 66. 
17. Jones, 1 Jones N. C. 496, p. 70. 
V. Marrs, 11 Humph. 214, p. 70. 
17. McDowell, 4 Bibb, 188, p. 70. 
17. Perry, 2 Esp. 482, p. 33. 
17. Wagner, 66 Pa. 429, pp. 123, 
127, 129. 
Jordan 17. Crump, 8 Mees. & W. 787, p. 
V, Gallup, 16 Conn. 536, p. 217. 
17. Hanson, 49 K. H. 199, pp. 209. 

V. Money, 5 H. L. Cas. 186, p. 
Judson 17. Bennett, 21 N. Y. 238, p. 286. 

Kahn 17. Love, 3 Greg. 206, p. 239. 
Karl 17. Maillard, 3 Bosw. 591, p. 264. 
Karr v. Parks, 40 Cal. 188, p. 250. 
Kaufman 17. Griesemer, 26 Pa. 407, pp. 

Kavanagh 17. City, 38 Barb. 232, p. 21. 
Kearney 17. Company, 9 Cush. 109, p. 34. 
Keasy v. Louisville, 4 Dana, 154, p. 12. 
Keck V. Halstead, 3 Lutw. 481, p. 96. 



Ke^gan v. Company, S K. Y. 17VP- 2^ 
Keeny 9. Company, 90 Conn. 870, pp. 

Keeaee «. Company, 8D Iowa, 78, p. 2T4. 
KolUi V. Howard, M Pick. W, pp. 2U. 

Kellor V. Company, 28 Tnd. 170, p. VO. 
Kelley v. Koyesjb K. H. 200, pp. 2ia 
Kellinger o. Company, 80 N. Y. 208, p. 

KoUooe V. Clilcaffo fto. Co. 26 Wis. 228, 
pp. £0, 2%, 238, 271, 2T4. 
o. etelner, 29 Wis. 826. p. 288. 
KeUy «. HoBdrio, 2r> Mioh. 2», p. 2». 
V. Katoma Water Co. 8 Cal. 106, 

p. 208. 
V. Kow York. 11 N. Y. OS, p. 288. 
Kemp t>. Keville, 10 Com. B. N. S. 028, 

M9, pp. 208, 209. 
Kendall v. Stokes, 3 How. 97, p. 222. 
Kennaid o. Burton, 25 Me. 49, p. 289. 
KenniBton v. Little. 10 Fost 318, p. 218. 
Kent V. Pocock, Strange, 1168, p. 74. 
Kerr v. Mount, 28 N. Y. 699, p. 96. 
Kiefer v. Rogers, 19 Minn. 32, p. 28L 
Kielly v. Belcher Silver M. Co. SSawy. 

C. C. SOO, p. 30. 
Kieman o. Heme, 51 Cal. 694, p. 96. 
Kimball v. Billings, 55 Me. 147, p. 116. 
V. Company, 9 Allen, 540, p. 

V. Cunningham, 4 Mass. 502, 

p. 118. 
V. Cushman, 108 Mass. 194, p. 

269. . 
V. Gearhart, 12 Cal. 27, p. 206. 
Kimmel v. Henry, 64 111. 505, p. 90. 
Kimmis v. Styles, 44 Vt. 851, p. 69. 
Kindred v. Stitt, 51 111. 401, p. 56. 
King V. Commissioners, 8 Bam.'& C. 
355, pp. 12, 21. 
V, Company, 2 Barn. & Aid. 646, 

p. 21. 
V. Company, 9 Cush. 113, p. 257. 
V. Franklin, 1 Fost & F. 960, p. 

V. Ijorking, 1 Bulat. 147, p. 66. 
V. Miller, 4 Halst. Ch. 559, p. 61. 
V. Morris, 3 C. £. Greene, 397, p. 

V, Root, 4 Wend. 113, p. 77. 
V. Rose, Freem. 347, p. 96. 
Knaresborough v. Belclier &c. Com- 
pany, 3 Sawy. C. C. 446, p. 39. 
Knight t\ Fox, 5 Ex. 721, pp. 267, 268. 
V. Gibbs, 3 Nev. & M. 469, p. 80. 
V, R. R. 23 lA. An. 462, p. 239. 
c. Wilcox, 14 N. Y. 413, p. 2:16. 
KnowleR v. RicliardHon, 5 Mod. 55, p. 4. 
Kock V. Branch, 44 Mo. 543. p. 116. 
Kost V. Bender, 25 Mich. 515, pp. 279, 

Kramer v. Stock, 10 Watts, 115, p. 90. 
Kroy V. Company, :j2 Iowa. 357, p. 252. 
Krug r. Ware, 77 III. 003, p. 90. 

Ladd V. Company, 119 Mam. 412; & C. 

20 Am. R. mjn, VP- 919. 284. 
Laiclier o. New Orleans ^fee. 28 La. Axu 

820. p. 248. 
Laidla v. Lovellas, 40 1«d. 2U, p. 21 
Lalliayette &c. v. HnCman, 28 Ind. 


lAke t>. KtaM[, 1 Sannd. lSld,pp. T9. 81. 

p. 245. 
Laily 9. Holhoid, 1 fiNma, 886, p. 127. 

o. Miller, 25 fUdi. XH. 

lAke Shoie 

Lamb v. Banett, 1 Oromp. St J. 
pp. 38, 48. 
17. PalV 9 Car. & P. 681, p. 
o. Stone, 11 Piek. 887. pp. 11, 28S. 
Lambard v. Pike, 33 Me. 151, p. a 
Lambert o. Bessy, T. Raym. 421. p. 137. 
Lamphier v. Phlpoa, 8 Oar. & P.-47&, p. 

Lancashire Wagon Co. v, Fitzhngh, 6 

Hurl. & N. 802. p. 98. 
Lander v. Miles, 8 Oreg. 85, p. 51. 
Lane v. Cotton, 1 Ld. Rajrm. 616; 12 
Mod. 472; 1 Balk. 17, pp. 222, 
V, Jasper, 39 111. 54, pp. 197, 202. 
Langhoff v, Milwaukee R. R. Co. 28 

wIb. 43, p. 273. 
Laning t7. Company, 49 K. T. 521, pp. 

Lanmier v: Francis, 28 Mo. 181, p. 138. 
Lansil v. Bangor, 51 Me. 521, p. 155. 
Lansing v. Yates, 6 Johns. 887, p. 207. 
V. Smith, 8' Cowen, 146, p. 21. 
Lasala t;. Hoibrook, 4 Paige, 169, pp. 

131, 135. 
Latham o. Humphrey, Cro. Eliz. 890. 

p. 68. 
Lawler v. Company, 62 Me. 463; S. C. 

16 Am. R. m, pp. 252, 257, 261. 
Lawrence v. Woodward, Cro. Car. 277, 

p. 68. 
Layton v. Harris. 3 Harringt. 406, p. 73. 
Lea V. White, 4 Sneed. Ill, p. 87. 
Leach v. Nichois, 55 III. 273, p. 286. 
Leachman v. Dougherty, 81 111. 324, p. 


Lead Mining Company v. Baines, L. R. 

2 Ex. 324. p. 116. 
Leahey v. Company, 10 Mich. 199, p. 257. 
Loame v. Bray, 3 East, 599, pp. 269 

Le Clair t7. Company, 20 Minn. 90, pp. 

249, 261. 
Lecroy v. Eastman, 10 Mod. 499, p. 110. 
Lee v: Bayes, 18 Com. B. 599, p. i:0. 
V. Gansell, 1 (3owp. 1 ; Lofft. 374, p. 

V. Hodges, 13 Gratt. 726, p. 44. 
V. McKay, 3 Ired. 29, p. 95. 
Lehigh Bridge Co. v. Lehigh Coal &c. 

Co. 4 Rawle, 9. p. 21. 
Lehman t\ Shackleford, 50 Ala. 437, p. 

Leioe v. Eisenlerd, 32 N. Y. 229, 729, p. 



liBonard o. Tidd, 9 Met Mass. 6, p. M. 
V. Wilkins, 9 Johns. 283, p. 97. 
liepper v. Kaltman, 35 Ind. 894, p. 28A. 
Ijery v. Braniian, 89-Oal. 485, p. 8a 

V. Sdwards, 1 Car. & P. 40, p. 55. 
Xiewaztl o. Basely, 1 Ld. Raym. 88, p. 

Jj&wiB V. Oawardly. Gio. Jao. 313, p. 68. 
V. Clement, 3 Bara. & Ala. 702, 

p. 80. 
V. LeTy, BL B. & B. 537, pp. 80, 

V. Leyy, 27 Law J. Q. B. 289, p. 

V. Palmer, 6 Wend. 967, p. 65. 
linliis e. Inge, 7 Bing. 682, p. 174. 
liBeDUial vTOampbelT, 22 La. An. aOO; 

p. 219. 
lincolii V. Gbadtxrame, 06 He. 197, p. 
r. Company, 23 Wend. 425, p. 


V. Hapgood, 11 Mass. 360, p. 


Lindsay v. Lamed, 17 Mass. 190, p. 91. 

Lister v. Lobley, 7 Ad. & £. 124, p. 19. 

litclifield &c. V. Taylor, 81 111. 590, p. 

Little Miami R. R. Co. v. Stevens, 20 

Ohio, 415, p. 262. 
Little Miami Co. v. Wetmore, 19 Ohio 

N. a 110 ; 8. C. 2 Am. R. 373, p. 266. 
Little V. Moore, 1 South. 74, p. 209. 
livingston v. Adams, 8 Cowen, 175, p. 

V. McDonald, 21 Iowa, 160, 
pp. 13, 138, in, 197, 202. 
Uoyd V. Pierce, Cro. Jac. 424, p. 75. 

V. Sandiiands, 2 Moore, 210; 8 
Taunt. 250, p. 221. 
Locke 9. Company, 15 Minn. 350, p. 275. 
Lockenour v. Sides, 57 Ind. 360, p. 91. 
Lockhardt v. Lichtenthaler, 46 Pa. 151, 

p. 260. 
Locust Company v. Gorrell, 9 Phila. 

247, p. 140. 
Logan 17. Driscoll, 19 Cal. 623, p. 142. 
r. Murray, 6 Serg. & H. 175, p. 48. 
V. Steele, 1 Bibb, 594, p. 71. 
Loker v. Damon, 17 Pick. 284, p. 24G. 
Londegan v. Hammer, 30 Iowa, 508, pp. 

209, 210. 
Loomis r. Terry, 17 Wend. 496, pp. 40, 

Loonan v, Brockway, 3 Rob. 74, p. 254. 
LoriDg V. Mulcaby, 3 Allen, 575, p. 95. 
Loeee v. Buchanan, 51 N. Y. 47G, p. 139. 
Lott V. Hubbard, 44 Ala. 593, p. 218. 
Louchheim v. Gill, 17 Ind. 139, p. 286. 
Louisville &c. I7. Cavens, 9 Bush, 559, 

p. 267. 
Louisville Company v. Cavens, 9 Bush, 

559, p. 261. 
Louisville V. Collins, 2 Duv. 114, p. 283. 
Louisville Canal Co. v. Murphy, 9 Bush, 

522, p. 249. 
Lovegrove v. Company, 33 Law J. Com. 

P. 32J>, p. 268. 
Lovet V. Hawthorne, Cro. Eliz. 834, p. 


Lowfber v. Badnor, 8 East, US, p. 908. 
Lamby v. AlHay. 1 Tyrw. S17, p. 75. 
o. Allea, 1 Cromp. & J. 305; 1 
Tyrw. 224. p. 74. 
Lather t^. Company, 9 Cosh. 17L pp. 

138 130 "^ — v» -, w^m^ 

Lyde'o. RvaseU, 1 Bavn. & Ad. 894^ p. 

Lygo V. Newbold, 9 £x, 308, pp. 239, 

lyle V. Barber, 5 BIdb. 457, p. lit. 

V. Claaon, 1 Calnes, 981, pp. 65, 73. 
Lyon V, Hancock, 85 Cal. 972, p. 91. 
L^noh e. Davis, 12 How. Pr. 824, p. 84. 
V. NurdJB, 41 Bog. O. L. 422: 1 
Ad. i^ E. kTs. 29; 1 Q. B. 
», pp. 90, 233, 249. 
o. Smith, 104 Mass. 52, pp. 248, 
lomn V. Adams, 2 Ind. 143, p. 228, 

Mackay v. Ford, 5 Hurl. & N. 792, pp. 

Macon &c. v. Baber, 42 Ga. 900, pp. 339, 
V. Davis, 18 Ga. 679, p. 243. 
Macon Company v. McCoonnell, 27 

Ga. 481, p. 238. 
Macy w. CMty, 17 Ind. 267, p. 11. 
Madras Ry. Co. v. The Zemindar, ^ 
L. T. N. S. 770; S. C. Law R. 1 India 
Ap. 364, pp. 27, 138. 
Mad River &c. v. Barber, 5 Ohio St. 

562, pp. 248, 252, 255, 257. 
Magor V. Chad wick, 11 Ad. & £. 571, p. 

Mahan v. Brown. 13 Wend. 261, p. 60. 
Maher t>. Norwich Co. 45 Barb. 226, p. 

Mahurin v, Harding, 28 N. H. 128, p. 

Maitland v. Goldney, 2 Bast. 426, p. 76. 
Malachy v, Soper, 3 Bing. (N. C.) 371, 

P 284 
Mail t;. Lord, 39 N. Y. 381, pp. 265, 286. 
Malone r. Hawley, 46 Cal. 409, p. 249. 
Maloney v. Bartlett, 3 Camp. 210, p. 73. 
Munville r. Cleveland &c. 11 Ohio N. 

S. 417, p. 263. 
Marble v. Worcester, 4 Gray, 395, p. 234. 
Marbourg v. Smith, 11 Kau. 664, p. 90. 
Maria, The, 1 Pet. Adm. 180, p. 42. 
Marsh v. Billings, 7 Cush. 69, p. 284. 

t;. Ellsworth, :i6How. Pr. 632; S. 

C. 60 N. Y. 309, p. 83. 
V. Falkner, 40 N. Y. 6G2, pp. 279, 
Marshall v, Colien, 44 Ga. 489, pp. 27, 
V. Hosmer, 4 Mass. 60, p. 228. 
Martin v. Company, 23 Wis. 437, p. 236. 
V. Jordan, 60 Me. 6;n, p. 278. 
V, Mellon, 4 Bibb, 99. p. 69. 
V. Payne, 9 Johns. 387, p. 44. 
17. Riddle, 26 Pa. 415, pp. 138, 
139, 206. 
. V. Smylee, 66 Mo. 677, p. 286. 



Marvin r. Brewster I. Co. fi6 N. Y. 638; 

14 Alii. R. 322, pp. 128, 129. 
Mason v. Hill, 5 Bam. & Ad. 1: S. C. 3 
Ibid. 306, pp. 174, 178. 195, 
196, 198, 204. 
V. Keeling, 2 lA. Raym. 1585; 12 

Mod. 332, p. 43. 
v. Thompson, Hnt. 38, p. 68. 
t;. Vance, 1 Sneed, 178, p. 217. 
Massoth V. Company, 64 N. Y. 524, p. 

Matlock V. Todd, 19 Ind. 130,. p. 281. 
Mather v, Butler County, 28 Iowa, 253, 

p. 247. 
Matthews v. Beach, 5 Sandf. 256, p. 80. 
V. Terry, 10 Conn. 455, p. 38. 
Maugan v. Atterton, Law R. 1 £x. 239, 

p. 242. 
Mauley v. Field, 7 Com. B. N. S. 96, 

p. 47. 
3Iay V. Burdett, 9 Q. B. 101, p. 40. 

V. Company, 112 Mass. 90, p. 280. 
Mayer v. Walter, 64 Pa. 283, pp. 89, 90. 
Mayor v. Company, 2 De Gex, M. & G. 
852 p. 19. 
V. Lord,* 17 Wend. 286, p. 13. 
Mayson t;. Sheppard, 12 Rich. 264. p. 71. 
Maxwell v. Palmerton, 21 Wend. 407, 

p. 97. 
Mazetti v. New York, 3 E. D. Smith, 

98, p. 62. 
McAnnick v. Company, 20 Iowa, 338, 

p. 241. 
McBee v. Fulton, 47 Mo. 403, p. 88. 
McCabe v. Foot, 15 L. T. R. N. S. 115, 

p. 68. 
McCaleb v. Smith, 22 Iowa, 242, p. 70 
McCarthy v. Barrett, 12 Minn. 494, p. 

McClellan v. ScoU, 24 Wis. 81, p. 281. 
McCombs V. Akron, 15 Ohio, 474; 18 

Ohio, 229, p. 12. 
McConnell v. Dewey, 5 Neb. 385, p. 228. 
McCord V. High, 24 Iowa, 336, p. 197. 
McCready v. Company, 2 Strob. 356, p. 

McCiillough V. Grishobber, 4 Watts. & 

S. 201, p. 91. 
McDaniel v. Baca, 2 Cal. 326, p. 284. 

V. Edwards, 7 Ired. 408, p. 44. 
McDermott v. Pacific &c. 30 Mo. 115, 

p. 264. 
McDonald v. Askew. 29 Cal. 200, p. 206. 
V. Bear R. W. Co. 13 Cal. 

220, p. 206. 
V. Muscatine Bank, 27 Iowa, 

319, p. 286. 
V. Trafton, 16 Me. 225, p. 280. 
V. WHlkie, 13 111. 22, p. 221. 
McElhany v. Flynn, 23 Ala. 819, p. 216. 
McEnery v. Waterford, 8 I. R. C. L. 

312, p. 258. 
McFadden v. Robinson, 35 Ind. 24, p. 

McGar ». Williams, 26 Ala. 467, p. 280. 
McGlynn v, Brodie, 31 Cal. 376, pp. 251, 

252 264 
McGough r. Rhodes, 12 Ark. 626, p. 69. 
McGregor ». Hall, 3 Stewt. & P. 397. 

p. 225. 

McGregor «. Newton, 23 Cal. 340, p. 206. 

V. Thwaites. 3 Bam. & C. 2ft, 

p. 211. 

McGuire v. Grant, 1 Dutch. 366, p. 131. 

Mcintosh V. Matherly, 9 B. Mon. 19» 

p. 73. 
McKenna r. Pape, 1 H. L. Cas. 7, p. 

McKenzie v. ChoTin, 1 McMnll. 222, p. 

McKown V. Hunter, 30 N. Y. 626, p. 91. 
McLaren v, Birdsong, 24 Ga. 266, p. 91. 
Mcljcan v. Blue Point Gravel M. Co. 
61 Cal. 255, p. 40. 
V. Cook, 23 Wis. 364, pp. 61, 
218, 221. 
^cLeod t'. Jones, 105 Mass. 403, p. 117. 
McManus v. Crickett, 1 East, 106, pp. 
V. Jackson, 28 Mo. 66, p. 09. 
McMillan v. Birch, 1 Bin. 178, pp. 83, 
V. Saratoga &c. 20 Barb. 449, 
pp. 248, 256. 
McNeal v, Emerson, 16 Gray, 384, p. 

McQuilken v. Company, 50 Cal. 7. p. 

Mead v, Bimn, 32 N. Y. 276, p. 281. 
V. MUnson, 60 III. 49, p. 286. 
Meader v, Stona, 7 Met. 147, p. 35. 
Mechanics' Bank r. N. Y. & N. H. K. 
R. Co. 13 N. Y. 699, ^p. 101, 108, 106, 
Medbury v. Watson, 6 Met. 246, p. 278. 
Meigs V. Lister, 8 C. E. Green, 199, p. 

MelloTS V. Shaw, 1 Best. & S. 437, p. 252. 
Memphis &c. v. Thomas, 61 Miss. 637, 

Merced Water Co. v, Cowles, 31 Cal. 

216, p. 206. 
Mercer v. Jackson, 64 HI. 397, pp. 34, 
V, Walmesley, 5 Har. & J. 27, 
p. 44. 
Merrick v. Wallace, 19 HI. 486, p. 226. 
Merrilield v. Worcester, 110 Mass. 216, 

pp. 196, 197. 
Merritt v. Parker, 1 Cox N. J. 460, p. 

Meyer v. Company, Ibid. 161, p. 275. 
Michaelson v. Dennison, 3 Day 0. C. 

294, p. 42. 
Michel V. Brown, 1 Roll. Abr. 70; pi. 46. 

p. 72. 
Michigan &c. v. Campan, 36 Mich. 468, 

p. 243. 
Michigan Co. v. Leahey, 10 Mich. 198, 

pp. 264, 276. 

Milan, The, 1 Lush. Adm. 388, p. 260. 

31 L. J. Adm. 105, p. 271. 

Milburn v. Oilman, 11 Mo. 64, p. 221. 

Millar v. Thompson, 1 Wend. 447, p. 44. 

Millen v. Fawdry, Latch, 120; Poph. 

161; Bigelow's L, C. Torts, 382, p. 118. 

Miller v. Bradford, 12 Iowa, 14, p. 227. 

V. Lanback, 47 Pa. 154, pp. 197, 

V, Laubach, 47 Ga. 260, p. 13. 




MUlcrv. Harinen' Church, 7 Greenl, 
M, p. 246. 
V. Boy, 10 La. An. 231, p. 247. 
Millington v. Fox, 3 Mylne & C. 338, p. 

Mills V. Brooklyn, 32 N. Y. 489, p. 11. 

V. Monday, 1 Lev. 112, p. 66. 
M'llYoy V. Gockran, 2 Marsh. 274, p. 37. 
Mima v. Mims, 35 Ala. 23, p. 226. 
Miner v. Gilmour, 12 Moore P. G. G. 

131, pp. 16. 196. 
Mississippi & G. R. Go. v. Whitfield. 44 

Miss. 466, p. 275. 
Mitchell V. Grassweller. 13 Gom. B. 237, 
pp. 2(i6, 267. 
t». Dors, 6 Ves. 147, p. 132. 
r. Harmony, 13 How. 115, p. 18. * 
Mitcheson v. Foster, 3 Met. (Ky.) 324, 

p. 217. 
MXean v. Gook, 23 Wis. 364, p. 220. 
Mobile &c. v, Asbcraft, 48 Ala. 15, p. 

Monongahela Go. v. Goons, 6 Watts. & 

8. 101, p. 13. 
Monongahela Bridge Go. v. Kirk, 46 

I*a. 112 p. 22. 
Monroe v, Gollins, 17 Ohio N. S. 665, p. 

Montoyer v, Gompany, 6 Ex. 451, p. 233. 
Moody V, McGlelland, 3{) Ala. 45, p. 134. 
Moore v. Cent. R. R. 4 Zab. 284, p. 239. 
r. Jarrett, 10 Tax. 210, p. 228. 
V. Syne, 2 Roll. 84, p. 74. 
V, Terrell, 1 N. & M. 560, p. 77. 
V. Turbeville, 2 Bibb. 602, p. 282. 
Morehead v. Eades, 3 Bush, 121, p. 278. 
Moreland v. Atchison, 10 Tex. 303, p. 

Morgan v. Company, 33 Law J. Q. B. 
260; liaw B. 1 Q. B. 149, 
pp. 257, 261,264. 
V. Gompany, 35 Law J. Q. B. 

23 P. 'SQ. 
V. Dudley, 18 B. Mon. 693, pp. 

208, 211. 
V. Hughes, 2 T. R. 225. p. 208. 
V. Vale &c. Law R. 1 Q. B. 149, 
p. 256. 
Morris R. R. Co. v. Haslan, 33 N. J. L. 

147, pp. 239, 273. 
Morris v, Nugent, 7 Gar. & P. 572, p. 96. 
v. Parkinson, 1 Gromp. M. & R. 

163, p. 208. 
0. People, 3 Denio, 381, p. 223. 
V. Piatt, 32 Conn. 75, p. 3. 
V. Reynolds, 2 Ld. Riftym. 857, 
Morrison v. Bucksport, 67 Me. 353, p. 
V. Cornelius, 63 N. G. 346, p. 

r. Davis, 20 Pa. 171, p. 235. 
V. Harmer, 3 Bing. N. C. 758, 

p. 77. 
V. Marquardt, 24 Iowa, 35, p. 
Morse v, Crawford, 17 Vt. 499, pp. 31, 32. 
V. Dearborn, 109 Mass. 593, p. 280. 
v. Nixon, 8 Jones N. C. 35, p. 97. 
Moses 0. Dubois, Dud. 209, p. 54. 

D. A. L— 20. 

Mosier v. Caldwell, 7 Nev. 363, p. 162. 
Moss V, Johnson, 22 111. 642, pp. 248, 255. 
Moulton V. Norton, 5 Barb. 286, p. 228. 
Mouse's Case, 12 Rep. 63; Dyer, 36, pp. 

17, 93. 
Mower v, Watson, 11 Vt. 356, p. 84. 
Mowry v. Miller, 3 Leigh, 561, p. 89. 
Mulgrave v. Osden, Cro. Eliz. 219, p. 95. 
Mulherrin v, Delaware &c. 81 Pa. 366, 

pp. 242, 248. 
Mulligan V. Curtis, 100 Mass. 512, p. 250. 
V, Elias, 12 Abb. Pr. N. S. 259, 
p. 59. 
Muns o. Dupont, 3 Wash. C. G. 31, p. 89. 
Munson v. Nichols, 62 HI. Ill, p. 286. 
Murchie v. Black, 34 Law J. Com. P. 

337, p. 135. 
Murphy v. Chicago &c. 45 Iowa, 661, 
pp. 243, 245. 
r. Chicago, 29111. 279, p. 11. 
V. Dean, 101 Mass. 455, pp. 239, 
245, 272. 
Murray v. Gompany, 1 McMuU. 385, 
pp. 257, 261. 
V. Long, 1 Wend. 140, p. 89. 
Murry v. Currie, Law R. 6 Gom. P. 24, 

p. 265. 
Mussey v, Scott, 32 Vt. 82, p. 120. 
Myan v. Okey, Freem. 17, p. 72. 
Myers v. Gamel, 10 Barb. 537, p. 61. 


Naglee v. Pacific Wharf Go. 20 Gal. 533, 

pp. 101, 102. 
Nance v. Jjblit, 5 Ala. 370, p. 286. 
NashTille Gompany v. Elkin, 6 Cold. 

582, p. 34. 
Natoma &c. r. McCoy, 23 Gal. 490, p. 

Needham v, Dowling, 15 Law J. Com. 
P. 9, p. 88. 
V, San Francisco R. R. 37 
Gal. 400, p. 239. 
Neeley ». Lindsey, 67 Pa. 217, p. 284. 
Nelson r. Danielson, 82 HI. 645, p. 91. 

r. Iverson, 17 Ala. 216, p. 96. 
Neth V. Crofut, 30 Conn. 580, pp. 218, 

Nevins v. Peoria, 41 111. 502, pp. 12, 197, 

New Boston Coal M. Co. v. Pottsville 

Water Co. 54 Pa. 164, p. 145. 
Newfield w. Gopperman, 15 Abb. Pr. 

N. S. 360, p. 83. 
New Haven Co. v, Yanderbilt, 16 Conn. 

429, p. 275. 
New Jersey Ex. Co. c. Nichols, 33 N. 

J. 434, p. 239. 
Newkirk v. Sabler, 9 Barb. 652, pp. 117 

Newman v. Sylvester, 42 Ind. 106, p. 280. 
New Orleans v. Harrison, 48 Miss. 112, 

p. 265. 
New River Gompany v, Johnson, 105 

Eng. C. L.; 2 EL & E. 434; 2 Ad. & 
, E. 435, pp. 160, 184. 
New York Life Ins. Co. v. White, 17 

N. Y. 469, p. 226. 



Kiohols V. Guy, 2 Ind. 82, p. 76. 

V. Maraland, Law B. 10 Ex. 
2K5; 14 Moak'8 £ng. B. 088, 
p. 138. 
o. Valentine, 36 Me. 322,p. 3. 
Nicholson v. Hard wick, 5 Gar. & r. 496, 
p. 66. ' 
V. Lyne, Gro. Eliz. 94, p. 74. 
Nickerson v. Harriman, 38 Me. 277, p. 
V. Stryker, 10 Johns. 115, p. 
Nimrod, The, 1 Ware, 18, p. 42. 
Nixon V. Hill, 2 Allen, 216, p. 219. 
Nolandv. Busby, 28 Ind. 154, p. 218. 
Norris V, Litchfield, 35 N. H. 271, p. 243. 
North Pacific B. B. Co. v, Mahoney, 31 

Pa. 187, p. 81. 
North Pacific B. B. Company v. Bobin- 

son, 44 La. 175, p. 34. 
North Pa. B. Co. v. Hietman, 13 Wright, 

60, p. 274. 
North Penn. B. Co. v. Mahoney, 57 Pa. 

187. p. 249. 
North 0. Smith, 10 Com. B. N. S. 575, p. 

Norton c. Ladd, 6 N. H. 203, p. 70. 

V. Valentine, 14 Vt. 239, p. 206. 
V, Young, 3 GreenL 33, p. 116. 
Norwich Sec. v. Daly, 26 Conn. 591, p. 

Nouise v. Prime, 4 Johns. Ch. 496: S. 

C. 7 Ibid. 69, pp. 109, 110. 
Nowell V. Tripp, 61 Me. 426, p. 218. 
Noyes v. Loring, 55 Me. 408. p. 280. 

V. Smith, 28 Vt. 59, p. 262. 
I^uttall V. Bracewell, Law B. 2 Ex. 1, 

pp. 12. 16, 196. 
2^utt V. Wheeler, 30 Vt. 436, p. 96. 


Cakes v. Wood, 3Mees. & W. 150, p. 37. 
O'Brien v. Barry, 106 Mass. 300, p. 89. 
O'Connorr. Pitteburgh, 18 Pa. 187, p. 11. 
O'Donoghue v. Hussey, Irish B. 50. L. 

124, p. 81. 
O'Donnell v. Company, 69 Pa. 239, p. 

Ogbum V. Connor, 46 Cal. 346, p. 138. 
Ogden V. Blley, 2 Greene, 186, p. 66. 
Ogg V. City, 36 Iowa, 496, p. 24. 

V. Lansing, 36 Iowa, 496, p. 224. 
Ohio &c. V. Shanefelt, 47 HI. 497, p. 285. 
O'Keefe v. Chicago &c. 32 Iowa, 467, 

p. 272. 
Olmstead v. Brown, 12 Barb. 657, p. 234. 
Ombony v. Jones, 19 N. Y. 234, p. 98. 
Onslow V. Home, 2 Blackst. 750, p. 74. 
Ormond v. Holland, £1. 6. & £. 106, p. 

Ormrod v. Huth, 14 Mees. & W. 664, 

pp. 279, 280. 
Orr V. Box, 22 Minn. 485, p. 218. 
Ortman v. Dixon. 13 Cal. 33, p. 206. 

V, Greenman, 4 Mich. 291, p. 
Osbofn V. Gillett, U B. 8 Ex. 88, p. 


Orerton v. Freeman, 11 Com. B. 887, 

pp. 267j288. 
Owen v. Herman, 1 Watts Ss S. 548, p. 

Owings V. Jones, 9 Md. 108, p. 244. 
OxfoKl V. Peter, 28 lU. 434, p. 267. 


Pack V. Mayor, 3 N. Y. 489, p. 34. 
Packer v. Spangler, 2 Binn. 60, p. 70. 
Padmore v. Lawrence, 11 Ad. & E. 380, 

p. 84. 
Paducah &c, v. Hoehl, 12 Bush, 41, p. 

Page'v. Belt, 17 Miss. 263, p. 217. 
Paee V. Parker, 43 N. H. 363, p. 278. 
Painter v. Company, 3 Ad. & E. 433, 

p. 209. 
Palfrey v. Company, 4 Allen, 56, p. 84. 
Palledo, The, 3 Ware, 321, p. 43. 
Palmer v. Hunter, 8 Mo. 512, pp. 09, 72. 
Pangbum v. Bull, 1 Wend. 345, p. 90. 
V. Bamsay, 11 Johns. 141, p. 
Pantin v. Holland, 19 Johns. 92, pp. 

131, 135. 
Pappa V, Bose, L. B. 7 Com. P. 32, 625, 

p. 210. 
Parham v. Bandolph, 6 How. (Miss.) 

435, p. 281. 
Park i;. O'Brien, 23 Conn. 339, pp. 243, 

Parker v. Adams, 12 Met. 415, p. 275. 
V. B. & M. B. B. 3 Gush. 107, 

pp. 156, 185, 190. 
V. Hotchkiss, 25 Conn. 321, p. 

V. Foote, 19 Wend. 309, p. 60. 
V. Huntington, 7 Gray, 37, p. 89. 
o. Lombard, 100 Mass. 406, p. 96. 
V. Mitchell, 31 Barb. 469, p. 87. 
r. Smith, 1 Gilm. 411, p. 216. 
Parks V. Newburyport, 10 Gray, 28, 

pp. 138, 197, 201. 
Parmer v. Anderson, 33 Ala. 78, p. 70. 
Parratt v. Carpenter, Noy , 64, Cro. Eliz. 

74^ 75, p. 5OT: 
Parrett v. Shaubhut, 5 Minn. 823, p. 227. 
Parrott v. Wells, 16 Wall. 224, p. 29. 
Parsons r. Travis, 1 Duer, 439, p. 62. 
Partridge v. Scott, 3 Mees. & W. 220; 7 
Law J. N. S. Ex. 101, pp. 133, 134, 181. 
Paaley v. Freeman, 3 T. B. 51, pp. 10^ 

281, 283, 286. 
Pastorius v. Fisher, 1 Bawle, 27, p. 174. 
Pater v. Baker, 3 Com. B. 831, 868^ p. 

Paton V. Westervelt, 2 Duer, 362, p. 65. 
Patrick v. Colerick, 3 Mees. & W. 483, 

pp. 117, 120. 
Patterson v. Company, 76 Pa. 389, p. 249. 
V. Thompson, 24 Ark. 55, p. 

V, Wallace, 1 Macq. H. L. 
Gas. 748, pp. 251, 252. 
Pattison v, Jones, 8 Baru. & C. 678, pp. 

78 80 
Paul V. Slosson, 22 Vt. 231, p. 15. 



Payne v. Bennmorris, 1 Lev. 248, p. 75. 

V. Smith, 20 Oa. 6M. p. 286. 
Peaobey v. Rowland, 13 Com. B. 182, 

p. 267. 
Peaid V. Jones, Cro. Gar. 382, p. 74. 
Pease v. Clayton, 1 Best & 8. 658, p. 

Peasley v. Company, 98 Mass. 414, p. 

Pedrick v. Porter, 5 Allen, 324, p. 279. 
Peek v. Gnmey, Law R. 6 H. L. 377; S. 

C. 43 Law J. Ch. 19. p. 283. 
Penninf^ton v. Gallard, 9 Ex. 1, p. 125. 
Penn v. Ward, 2 Cromp. M. & R. 338, 

p. 38. 
Pennsylvania Land Company v. Bent- 
ley, 66 Pa. 30, p. 245. 
Pennsylvania B. Co. v, Beale, 73 Pa. 

504, p. 274. 
Pennsylvania R. R. Co. v, Goodman, 

62 Pa. 329, p. 239. 
Pennsylvania R. R. Co. v. Henderson, 

51 Pa. 315, p. 39. 
Pennsylvania R. Co. v. Kerr, 62 Pa. 

353, pp. 233, 235. 
Pennsylvania Co. v. Ogier, 35 Pa. 60, p. 

Pennsylvania R. R. Co. v. Yandever, 

12 Casey, 298, p. 30. 
Pennsylvania R. R. Co. v. Zebe, 9 Ca- 
sey, 330, p. 39. 
Penoyer v, Saginaw, 8 Mich. 534, p. 13. 
Penny In re, 7 El. & B. 660, p. 8. 
Pennybacker v. McDouKal, 4i8 Cal. 160, 

p. 98. 
Penrose v. Cnrren, 3 Rawle, 351, p. 32. 
Penmddock's Case, 5 Coke. 1006. p. 118: 
Penton v. Robart, 2 East, 88, p. 98. 
People V. Elmore, 35 Cal. 656, pp. 101. 
V. Warren, 5 Hill, 440, p. 221. 
Perkinson v. Bowman, Cro. Eliz. 853, 

p. 66. 
Perley v. Balcb, 23 Pick. 285, p. 116. 

V. Company, 98 Mass. 414, pp. 
233 235. 
Perry v. Man, 1 B. I. 263, p. 70. 

i;. Ricketts, 8E 111. 234, p. 264. 
v. Worcester, 6 Gray, 544, p. 197. 
Perryman v. Lister, Law R. 3 Ex. 197, 

p. 56. 
Peters v. Land, 5 Blackf. 12, p. 219. 
Pettigrew v. Evansville, 25 Wis. 223, 

pp. 138, 202. 
Peyton v. London, 9 Bam. & C. 725, p. 

Philadelphia Company v. Derby, 14 

How. 468, p. 265. 
Philadelphia &c. v, Hassard, 75 Pa. 367, 

P. 249. 
Philadelphia & Reading Coal & Iron 

Co. r. Taylor, 7 Pac. L. R. 127, p. 144. 
Philadelphia & Trenton R. R. Co. In 

re, 6 Whart. 43. p. 13. 
Philbrick v. Foster, 4 Ind. 442, p. 37. 
Phillips V. Jansen, 2 Esp. 624, pp. 66, 73. 
V. Kingston, 1 Vent. 117, p. 66. 
Philliter v. Phippard, 11 Ad. &E1. N. 

8. 347, p. 32. 
Phinizy v. Augusta, 47 Ga. 260, p. 197. 

^Phipps o. Garland, 3 Dev. & B. 44, p. 

Phosnix &c. v, Fletcher, 23 Cal. 281, p. 

Pickard v. Collins, 23 Barb. 444, p. 60. 
f >. McCormick, II Mich. 68, pp. 
279, 280. 
Pierce v, Atwood, 13 Mass. 324, p. 215. 
V. Jackson, 6 Mass. 242, p. 217. 
V. Pierce, 3 Pick. 299. p. 44. 
V, Thompson, 6 Pick. 193, p. 91. 
Pierre v. Fernald, 26 Me. 436, p. 60. 
Piggott V. Company, 54 Eng. C. L. 229, 

Sp. 233, 236. 
e V. Carter, 3 Bing. 78, p. 208. 
V, Fay, 101 Mass. 134. p. 279. 
V. Magoun, 44 Mo. 492, p. 211. 
V. Van Wormer, 5 How. Pr. 171, 
p. 76. 
Pilgrim v. Southampton Sec. 7 Com. B. 

m p. 19. 
Pillsbury v. Moore, 44 Me. 154, p. 202. 
Pitcher v. King, 9 Ad. & E. 288. p. 208. 
Pit V. Donovan, 1 Maule &S. 639,p. 284. 
Pitts V, Lancaster Mills, 13 Met. 156, p. 

Pittsburgh &c. v. Caldwell, 74 Pa. 421, 

p. 260. 
Pittsburgh & F. W. R. v. Methuen, 21 

Ohio St. 583, pp. 239. 249. 
Pittsburgh &c. v. Vining, 27 Ind. 513, 

p. 250. 
Pixley V, Clark, 35 N. Y. 520, pp. 139, 

184, 186, 189. 192. 
Place V. Taylor, 22 Ohio N. S. 317, p. 

Plant V, Stott, 21 L. T. R. 106, p. 140. 
Plate Glass Co. v. Meredith, 4 T. R. 

794, pp. 12, 18, 19. 
Piatt V, Tuttle,23 Conn. 233, p. 96. 
Plattner v, Johnson, 26 Miss. 142, p. 94. 
Playford v. Company, Law R. 4 Q. B. 

706, p. 280. 
Plummer v. Harbut, 5 Clarke, 308, p. 
V. Webb, Ware, 78, p. 34. 
Poe V, Mondford, Cro. Eliz. 620, p. 75. 
Poland v. Mason, Hob. 306, p. 68. 
Polhie V. Walter, 3 Bam. & Adol. 123, 

p. 283. 
Polk V. Cosgrove, 4 Biss. 437, p. 226. 
PoUey t'. Lenox Iron Works, 2 Allen, 

182, pp. 94, 96. 
PoUitt V. Long, 68 Barb. 20, p. 196. 
Pomeroy r. Smith, 17 Pick. 85, p. 115. 
Pontiac v. Carter, 32 Mich. 164, p. 224. 
Pool V. Lewis, 41 Ga. 162; S. C. 5 Am. 

R. 526, pp. 194, 196. 
Popplewell V. Hodgkinson, 4 L. R. Ex. 

248, pp. 133, 161. 
Porter v. Purdy, 29 N. Y. 106, p. 55. 
Postlethwaite v. Parkes, 3 Burr. 1878, 

p. 45. 
Potter V. Falkner, 1 Best & Smith, 800; 

31 I^aw J. Q. B. 30, p. 265. 
Potts V. Imlay, 1 South, 330, p. 90. 

V. Plunkett, 9 I. C. L. R. 290, p. 
Powell V. Aiken, 4 Kay & J. 343, pp. 

145, 146. 



Powell V. Deveney, SGuBh. 300, p. 233. 
o. Hutchin, Cro. Jac. 204, p. 66. 
V. Bees, 7 Ad. & E. 426; 8 L. J. 

N. S. Q. B. 47, p. 146. 
V. Winde, Hob. 305. p. 66. 
Power V. Price, 12 Wend. 500, p. 72. 
Pratt V. 6ardner,2 Cunh. 68. pp. 207, 209, 

Prentice v. Shaw, 66 Me. 427. p. 15. 
Prescott V, Williams, 5 Met. 429, p. 20R. 
Price V. Harwood, 3 Gamp. 108, p. 217. 
Pridam v. Tucker, Noy. 133, p. 66. 
Prideaux t;. Mineral Point, 43 Wis. 513, 

p. 15. 
Priestly v. Fowler, 3 Mees. & W. 1, pp. 

248, 252, 256, 261. 
Proctor V. Jennings, 6 Nev .83, p. 202. 
Proud V, Bates, 34 L. J. Gh. 406, p. 128. 
Pugh V. Griffith. 7 Ad. & E. 827. p. 221. 
Puterbaugh v. Reasor, 9 Ohio St. 484, 

p. 250. 
Putnam r. Payne, 13 Johns. 312, p. 97. 
V. Sullivan, 4 Mass. 45, p. 286. 
Pym V. Company, 2 Best. & S. 769; 4 

Ibid. 396, p. 20. 


Queen v. Company, 1 Gale & D. 589, p. 

Quin V. Moore, 15 N. Y. 436, p. 34. 
Quincy v. Jones, 76 III. 231, p. 134. 
Quinn t;. O'Gara, 2 E. D. Smith, 388, p. 


Badcliffe*s Executors v. Mayor &c. 4 

N. Y. 195, pp. 21, 22, 62, 131, 185. 
Baesdale v, williaps, 8 Ired. 498, p. 05. 
BaUroad v. Gladmon, 15 Wall. 401, pp. 
30, 245. 249. 
V. Jones, 95 U. S. 439. p. 243. 
V. Kldd, 7 Dana. 252. p. 95. 
V. Beaney.42 Md. 117, p. 131. 
V. Shaufelt, 47 111. 497, p. 274. 
V. Stout, 17 Wall. 657, p. 30. 
V. Whitton, 13 Wall. 270, pp. 
245 274 
Bainbolt v. Eddy, 34 Iowa, 440; S. C. 

11 Am. R. 152, p. 286. 
Bamsey r. Chandler, 3 Gal. 93, p. 206. 

V. Biley, 13 Ohio, 157, p. 227. 
Bandall v. Brigham, 7 Wall. 523, pp. 

207. 214. 
Bandleson v. Murray, 8 Ad. & E. 109, 

p. 268. 
Bapson v. Gubitt, 9 Mees. & W. 710, p. 

Baritan Company v. Lee, 2 Zab. 243, p. 

Batcliffe t?. Shubrey, Cro. Eliz. 224, p. 

Bathbun v. Paine, 19 Wend. 399, p. 244. 
Bavenga v. Mackintosh, 2 Barn. & C. 

693, p. 90. 
Bawstron v. Taylor, 11 Ex. 382; 23 Eng. 
L. & Eq. 428, pp. 163, 170, 173, 189, 
192, 202. * 

Bay V. Law, 1 Pet. C. C. 207, p. 90. 
Baymond v. Bolles. 11 Gush. 315, p. 210. 
Bea V. Sheward, 2 Mees. & W. 424, p. 
V. Tucker, 51 111. 110, pp, 44, 60. 
Bead t\ Edwards, 17 Com. B. N. S. 260, 

p. 119. 
Beading v. Keppleman, 61 Pa. 233, p. 11. 
Sector «. Pierce, 3 N.Y. Sup. Gt.Tbomp. 

& G. 416. p. 229. 
Beddie v. Scoolt, Peake, 240, pp. 48, 60. 
Bedway w. Gray. 31 Vt. 292, p. 66. 
Beed v. Conway, 20 Mo. 22, pp. 222, 210. 
V. Sidener, 32 Ind. 373, p. 285. 
t?. Spicer. 27 Gal. 57, p. 206. 
Beedle & Hobbit v. Railway, 4 Ex. 244, 

p. 267. 
Beeves v. Company. 30 Pa. 454, p. 230. 
Beevis v. Smith, 18 Com. B. 126, p. 78. 
Beglna v. Bolton, 1 Q. B. 66, p. 209. 

V, Company, 34 Law J. Q. B. 

191, p. 63. 
». Dripcoll, Car. & M. 214, p. 3T. 
V, Metropolit-an B*d of Works, 
3 Best & Smith, 706, (113 
Eng. G. L.)p. 160. 
V. Mutters, 10 Cox C. G. 6, p. 
Bex v. Abingdon. 1 Esp. 226. p. 79. 

V. Board, 5 Beat & Smith, 615; 6 

Best & Smith, 562, p. 62. ■> 
V. Carlisle, 3 Bam & Aid. 197, p. 

V. Commissioners, 8 Bam. & C. 

362, p. 2. 
r. Creery, 1 Maule & S. 273, pp. 79, 

o. Huggins, 2 Ld. Baym. 1583, p. 

V. Pagham, 8 Barn. & C. 860, p. 24. 
V, Pease. 4 Bam. & Adol. 42, p. 62. 
V. Sheriff. 1 Marsh, 75, p. 217. 
V, Veley, 4 Fost. & F. 1117, p. 81. 
Beynolds v. Clark, Ld. Baym. 1399, p. 
V. Shrevesport, 13 Ia. An. 
426. p. 11. 
Beynor v. Hallett, Poph. 187; Cro. Jac. 
306, p. 65. 

Bhodes v. City. 10 Ohio, 159, ^. 12. 
;lce V. The 
420, p. 42. 

Bice V. The Polly & Kitty 

59, p. i: 
,2 Pet. 


Bich V. Basterfield, 4 Com. B. 783, p. 58. 
V, Pierpont. 3 Fost. & P. 35, p. 276. 
Bichards' Appeal, 57 Pa. 105, p. 145. 
Bichards v. Harper, L. B. 1 Exch. 199, 
p. 135. 
V, Nye, 5 Oreg. 382, p. 221. 
Bichardson v. Bond, 16 Gray, 387, p. 61. 
V. Company, 25 Vt. 465, p. 

V. Kier,'37 Gal. 263, p, 206. 
Bichmond v. Long. 17 Gratt. 375. p. 222. 
Bichmond &c. v. Vanderbilt, 2 N. Y.- 

479: S. C. 1 Hill. 480, p. 266. 
Bickart v. Scott, 7 Watts, 460, pp. 131, 

Bidgely v. Hewitt, 5 Ex. 240, p. 233. 
Biggs V, Boylan, 4 Biss. 445, p. 225. 
V. State, 3 Cold. 85, p. 299. 



Ring V. Wheeler, 7 Covr. 726, pp. 83, 84. 
Boath o. DriscoU, 20 Conn. 533, pp. 103, 

161, 162. 184. 185, 188, 190. 
Boberte v. Champlin, 14 Wend. 120, p. 
V. Chicago, 26 HI. 249, p. 11. 
V. Connelly, 14 Ala. 235, pp. 

V. EldridglB, 1 Sprague, 54, p. 

V. Taylor, 1 Com. B. 147, p. 37. 
Bohertson v Gnntlett, 16 Mees. & W. 
296, p. 18. 
V. Lea, 1 Stewt. 141, p. 71. 
Bobinson v. Cone, 22 Vt. 213, pp. 213, 
239, 249, 200. 
v. Drummond, 24 Ala. 174, 

p. 66. 
V. Harrison, 7 Humph. 189, 

p. 217. 
o. HawkinB, 4 Mon. 136, p. 37. 
V. Rupert. %i Pa. 554, p. 15. 
Roheon v. Jones, 2 Bail. 4, p. 121. 
Rochester White Lead Co. v. Roches- 
ter. 3 N. y. 463, pp. 211, 214, 219, 222. 
Rockford &c. v. Byam, 80 III. 528, p. 

Rodgers v. Nowill, 5 Com. B. 109,p. 284. 
RoeUa o. Follow, 7 Blackf . 377, p. 69. 
Rogers v. Dutt. 13 Moore, P. C. C. 209, 
pp. 8, 16. 
V. Place, 35 Ind. 577, p. 282. 
V. Sawln. 10 Gray, 377, pp. 60, 
Rogers v, Taylor, 27 L. J. N. S. Ex. 173; 

2 M. & K. 828, pp. 123, 135. 
Rolian v. Sawin, 5 Cu9h. 281, pp. 55, 56. 
Roll V. Augusta, 34 Ga. 326, p. 11. 
Rome V. Ombeig, 28 Ga. 46, p. 11. 
Rood V. Company, 18 Barb. 80, p. 238. 
Root V, King, 7 Cow. 613, p. 76. 
Rose V. Hurley, 39 Ind. 77, p. 277. 
Roes V. Butler, 4 C. £. Greene, 19 N. J. 
Eq. 294, p. 145. 
v.'Company, L. B. 3Eq. 122, p. 285. 
V. Fedden, L B. 7 Q. B. 661, pp. 

27, 143. 
V. Bouse. 1 Wend. 475, p. 72. 
Roulston V. Clark, 3 £. 1). Smith, 366, 

p. 244. 
Rounds V. Mumford, 2 R. 1. 154, p. 12. 
Rowbotham v. Wilson, 8 H. L. Cas. 348, 

pp. 125, 131. 
Rowe V. Addison, 34 N. H. 306. p. 197. 
V. Hawkins, 1 Kost. & F. 91, p. 
Rowning v, Goodchild, 2 W. Black. 

906, p. 227. 
Bussell V. Barrow, 7 Porter, Ala. 106, 
p. 97. 
17. Company, 17 N. Y. 134, pp. 

257, 258, 263, 264. 
o. Come. 2 Raym. 1032, p. 45. 
V. Mayor. 2 Den. 461, pp. 13, 18. 
V. Wilson, 7 B. Mon. 261, p. 68. 
Butliche's Case, 4 Coke. 17, p. 69. 
Ryalls V, Leader, L. R. 1 Ex. 296, p. 88. 
Ryan v. New York Central Railroad 
Company. :i5 N. Y. 210, pp. 
230, 231, 233, 235, 237. 

Ryan v. Company, 23 Pa. 382, p. 264. 
V. Cumoerland &c. 23 Pa. 384, p. 

». Fowler, 24 N. Y. 410, pp. 251, 
Ryckman v. Gillis, 57 N. Y. 68; 15 Am. 

R. 464, p. 128. 
Ryles' Case, Cro. Eliz. 171, p. 76. 

Sadler v, Henlock,- 4 El. & B. 570, p. 

Sage V, Laurain. 19 Mich. 137, pp. 210, 

Salem Bubber Co. v. Adams, 23 Pick. 

256, p. 281. 
Salisbury v. Gladstone, 9 H. L. Cas. 

705, p. 131. 
Saltonstall v. Banker, 8 Gray, 195, p. 62. 
Saltus o. Everett, 20 Wend. 278, p. 113. 
Sampson v. Hodinott, 1 Com. B. N. S. 
590. p. 16. 
V. Smith, 15 Mass. 365, pp. 38, 
Samuels v, Mavor, 3 Sneed, 291, p. 62. 
Sanborn v, Neilson, 4 N. H. 501, p. 50. 
Sanderson v. Haverstick, 8 Pa. 294, p. 

Sandford v. Bennett, 24 N. Y. 20, p, 88. 
Sandon v, Jervis, El. B. & E. 935, p. 221. 
Sanford v, Gaddis, 13 III. 329, p. 77. 
Sanger v. Craigue, 10 Vt. 555, p. 226. 
Satterthwaite v. Dewhnrst, 4 Doug. 

315, p. 46. 
Saunders v, Buckup, Bl. & Howl. 264, 
p. 42. 
V. Hatterman, 2 Ired. 32, p. 
Savacool v. Boughton, 5 Wend. 170, 

pp. 54. 55, 218. 
Savage v. Boberg, 2 Salk. 694, p. 75. 
Saville V. Roberts, 1 Ld. Raym. 374 ; 1 

Salk. 13, p. 90. 
Sawln V, Guild, 1 Gall. 485, p. 26. 
Sawyer v. Corse, 17 Gratt. 230, pp. 222, 

Scandover v, Warne. 2 Camp. 270, p. 217. 
Schattner v. City, 53 Mo. 162, p. 11. 
Scheettgen v. Wilson, 48 Miss. 263, p. 

Schell V. Stein, 76 Pa. 398, p. 227. 
Schelter v. York, Crabbe C. C. 449, p. 

Schierhold v. N. B. & M. B. B. Co. 40 

Cal. 447, p. 31. 
Schmidt v. Milwaukee &c. 23 Wis. 186, 

p. 249. 
Schroyer ». Lynch, 8 Watts, 453, p. 227. 
Scoles V. Wilsey, 11 Iowa, 261, p. 227. 
Scott V. Company, 11 1. B. C. Ij. 387, p. 
V. Shepard, 2 W. Black. 893, pp. 

3 2^13 237. 
V. Stansfleld, Law B. 3 Ex. 220, 

pp. 78. 211, 214. 
V. StansHeld, Law B. 3 C. P. 220, 
p. 208. 
Scribner v. Beach, 4 J>en. 448, p. 37. 



Seagar v. Sligerland, 2 Gaines, 219, p. 

Searle v. Lindsay, 11 Gom. B. N. S. 429; 
31 Law J. Com. P. 106, pp. 257, 261, 
Seaver v. Company, 14 Gray. 466, p. 256. 
Secor 17. Harris, 18 Barb. 425, p. 76. 
Seeeer r. Pettit, 77 Pa. 437, p. 98. 
Seehorn v. Darwin, 1 Const. S. G. 196, 

p. 11. 
Seekins v. Goodale, 61 Me. 400, p. 218. 
Seeley v. Brush, 35 Conn. 419, pp. 193, 

Selden v. Company, 24 Barb. 362. p. 139. 
Selmer Co. r. lAcy, 4;^ Ga. 461, p. 34. 
Semayne*8 Case, 5 Coke, 91, pp. 219. 220. 
Seymour v. Maddox, 5 £ng. L. & £. 
265, p. 248. 
V. Maddox, 16 Q. B. 332, p. 

V. Wickoff, 6 Seld. 213, p. 
Shadgett v. Clipsou, 8 East, 328, p. 217. 
Shane v. Brown. 28 Iowa, 37, p. 8i). 
Shanny v. Androscoggin Mill, 66 Me. 

420, p. 254. 

Sharp V. Powell, L. B. 7 Ex. 253, p. 234. 

Shaw V. Davis, 55 Barb. 389, pp. 51, 229. 

V. Senton, 27 Ijiw J. N. 8. Ex. 

253; 2 Hurl. & N. 858, p. 128. 

v. Spencer, 100 Mass. 382, pp. 113, 


Shearman v. AVestern Stage Co. 24 

Iowa, 543, p. 33. 
Shecut V. McDowell. 3 Brev 38, p. 70. 
Sheely v. Biggs, 2 Har. & J. 363, p. 69. 
Shemil V. Van Deusen, 13 Gray, 304, 

p. (i5. 
Sheldon v. Company, 14 N. Y. 218, p. 
V. Sherman, 42 N. Y. 484, p. 

V. Van Buskirk, 2 Comst. 473, 
p. 55. 
Shelfer t;. Gooding, 2 Jones, 175, p. 77. 
Shepherd v. Burkhalter, 13 Ga. 444, p. 
V. Temple, 3 N. H. 457, p. 
Sherman v. Company, 24 Iowa, 515, p. 
t7. Company, 17 N. Y. 153, pp. 

25L 261, 264. 
V, Fall River Iron AVorks, 5 
Allen. 213. p. 240. 
Sherwood w. Meadow Valley M. Co. 

60 Cal. 412, pp. m, 101, 103, 116. 
Shields r. Yonge, 15 Ga. :^9, p. 33. 
Shiloub u. Ammerman, 7 Ind. 347, p. 

Shipley v. Fifty Associates, 106 Mass. 

1V>4 p. 138. 
Shlpp V. McCraw, 3 Murph. 463, p. 68. 
Shippen v. Curry, 3 Met. (Ky.) 184, p. 

Shirts V. Overjolin, 60 Mo. 305. p. 286. 
Shreve v, Stokes, 8 B. Mon. 45.S, p. 131. 
Shury v. Pigott, 3 Bulst. 3;19; Poph. 

166; Palmer, 444, pp. 174, 204. 
Sible r. Marsh, 7 Pick. 38, p. 72. 

Sierra Nevada Mining Co. v. Sean, 10 

Nev. 436, p. 113. 
Sill V. Brown, 9 Car. & P. 601, p. 239. 
Silliman v. Lewis, 49 N. Y. 2B5, p. 299. 
Simraonds v. Lillystone, 8 Ex. 431, p. 

Simpson r. Howden, 1 Keen. 698, p. 19. 
V. Keokuk, 34 Iowa, 253, p. 
Sims V. Bice, 67 HI. 88. p. 286. 
Sinclair v. Eldred, 4 Taunt. 7, p. 91. 
Singleton v. lk>lton. 3 Doug. 293. p. 284. 
Skelton v. Earth, 2 Sid. 71, p. 67. 
Skidmore v. Bricki n, 77 111. 164, p. 90. 
Skipp o. Company, 9 Ex. 223, pp. 251, 

Skinner r. Company, 29 Conn. 582, p. 11. 
17. Housatonic Ry. Corp. 1 

Gush. 475, p. 33. 
V. White. 1 Dev. & B.471, p. 68. 
Slate V. Lutz. 65 K. C. 503, p. 218. 
Slatten v. Com pan v, 29 Iowa, 154, p. 62. 
Sleath V. Wilson* 9 Car. & P. 607, p. 

Slomer v. People, 25 111. 70, p. 221. 
Small V. Clewley, 60 Me. 282, p. 69. 
Smallcomb v. Cross, 1 Ld. Raym. 251, 

p. 218. 
Smart r. Morton, 1 Jur. K. S. 825; 3 
Com. Ijiw Rep. 1001; 24 Law J. Q. B. 
260; 5 El. & B. 30, p. 123. 
Smith V. Adams, 6 Paige, 435; & C. 24 
Wend. 585, pp. 177, 184, 190, 
r. Allison. Bull. N. P. 27, p. 44. 
V. Andrews, 8 Ired. 3, p. 2^. 
V, Ashley. 11 Met. S«7, p. 73. 
i». Berry, 37 Me. 298, p. 228. 
V, Blake, 1 Day, 258, b. 11. 
i\ Boucher, Gas. t. Hardw. 09, 

p. 208. 
V, Bowker, 1 Mass. 76, p. 217. 
V. Carey, 3 Camp. 461, p. 71. 
V. Comi>any, 19 N. Y. 127, p. 258. 
17. Company, 37 Mo. 287, p. 238. 
V. Company. 5 Law B. Comp. P. 

98, p. 233. 
V. Company, 5 Law R. Comp. P. 
68; 18 Week. R. 343; 21 L. 
T. N. 8. 668; 19 Week. R. 
230 p 2>^ 
V, Darby, Law R. 7 Q. B. 716; 3 

Moak Eng. R. 281, p. 128. 
t7. Flet<»her, LawR. 7 Ex. 305; S. 
C. T^w R. 9 Ex. 64 ; 8 Moak's 
Eng. R. 510, p. 137. 
V. Kennck, 7 Com. B. 515, 564; 
18 Law J. N. S. Com. P. 172, 
pp. i:?7, 175, 188. 
V. Leavitts, 10 Ala. 92, p. 216. 
V. London Company. Law R. 3 

Com. P. 326. p. 2158. 
t7. Masten, 15 Wend .'270, p. 50. 
V. O'Connor, 48 Pa. 218, p. 250. 
t7. Shaw, 12 Johns. 257, pp. 215, 

t7. Smith, 2 Pick. 621, p. 250. 
V. Steele, Law R. 10 Q. B. 125, p. 

V. Sykes, Freem. 224, p. 33. 



ftnith t*. Trawl, 1 Boot. 165. p. 219. 

V. Washington, 20 How. laS, p. 

V, Wood, 3 Gamp. 323, p. 73. 
V. Wright, 24 Barb. 170» p. 229. 
V. Yoram, 37 Iowa, 89, p. 25. 
Smoot V. Wetumpka, 24 Ala. 112. pp. 

Snag V. Gee, 4 Rep. 10a, p. m. 
Snow V, Allen. 1 Stark. 602. p. 90. 

V, Parsonn. 28 Vt. 459, pp. 194, 
Snyder v. Degant, 4 Ind. 678, p. 66. 
Solomon o. Vintners' Company, 4 Hnrl. 
& N. 602; S. C. 7 Am. L. Beg. &22, pp. 
39, 131 136. 
Somenrille v. Hawkins, 10 Com. B. 688, 

p. 78. 
Soper V. Company, 26 Iowa, 264, p. 24. 
South V. Denniston, 2 Watts, 474, p. 48. 
Sonthcote v. Stanley, 1 Hurl. & N. 247, 

p. 38. 
South Shield W. W. Go. v. Gookson, 16 

Law J. £x. 316. p. 12. 
Sparham v. Pye, Cro. Jae. 630, p. 68. 
Sparhawk v. Company, 64 Pa. 401, pp. 

Spelman v. Fisher Iron Co. 66 Barb. 

161. p. 40. 

Spencer v. Anness, 3 Vroom, 100, p. 66. 

V. Utlca &c. 6 Barb. 337, p. 239. 

Spongier v. Davy, 16 Gratt. 381, p. 91. 

Sprague v. Worcester, 13 Gray, 193, p. 


Springfield v, Harris, 4 Allen, 494, p. 

Squibb v. Hole. 2 Mod. 29. p. 216. 
Stacy o. Bosh. 27 Tex. 3, p. 286. 
Stallings v. Newman, 26 Ala. 300, p. 67. 
Stamp V. Sweatland. 8 Q. B. 13, p. 209. 
Stanley v. Webb, 4 Sand. 21, p. 88. * 
Stark V. Chitwood, 6 Kan. 141, p. 284. 
Starr v. Bennet, 5 Hill, 303, p. 218. 
State V. Campbell, 2 Tyler. 177, p. 211. 
V. Company. 62 N. H. 628, p. 239. 
V, Copp, 16 N. H. 212. p. 209. 
V. Freeman, 8 Iowa, 428, p. 216. 
V. Hamilton, 65 Mo. 620. p. 87. 
r. Linkham. 69 N. C. 214. 
t^. Manchester &c. 62 N. H. 628, 

p. 243. 
r. McNall, 34 Me. 210, pp. 216, 221. 
V. Peckhard, 6 Harrington, 600, 

p. 62. 
r. Powell; 44 Mo. 436. p. 247. 
V. Waltham. 48 Mo. 65, p. 87. 
Steams v. Sampson. 69 Me. 668, p. 36. 
Steel V. Company, 16 Com. B. 650, p. 

Steele v. Dunham. 26 Wis. 3S)3, p. 210. 
V. President, 2 Johns. 283, p. 21. 

Stent V, , Style, 127, p. 68. 

Stephens o.'Wilkins, 6 Barr. 260, pp. 

216 222. 
Stephenson v. Hall, 14 Barb. 222, p. 

Stevens v, Colby, 46 N. H. 163, p. 228. 

». Curtis, 18 Pick. 227, p. 94. 
Steventon v. Higgins, 2 Keb. 338, p. 66. 
Steward v. Bishop, Hob. 177, p. 68. 

Steward v, Gromett, 7 Com. B. N. S. 
191, p. 89. 
V. Southard, 17 Ohio, 402, p. 
Stewart v. Martin, 16 Vt. 397, pp. 216, 

St. Helen's Smelting Co. v. Tipping, 11 
H. L. Cas. 642; S. C. 4 Best. & S. 608; 
I^w B. 1 Ch. 66, 116; Eng. C. L. 1093, 

no. 68, 144. 
tiriey v. 

Stiriey v. Hill, Cro. Car. 283, p. 67. 
St. Louis &c. V. Britz. 72 111.266, pp. 249, 

St. Paul r. Kuby. 8 Minn. 164, p. 245. 
Stockdale v. Hansard. 9 Ad. & K. l,p.79. 
Stoddard v. Tarbell, 20 Vt. 321, p. 216. 
Stone V. Augusta, 44i Me. 127, p. 210. 

t'. Buiiipus, 4(> Cal. 218, pp. 147, 


V. Cartwrlght. 6 T. B. 411, p. 269. 

V, Codman, 15 Pick. 397, p. 236. 

V. Marsh, 6 Bam. & C. 657, p. 20. 

Storey c. Ashton, Law B. 4 Q. B. 476; 

38 Law J. Q. B. 223, p. 266. 
Storrs V. Utica, 17 N. Y. 104, p. 268. 
Stoughton V. State, 6 Wis. 291, pp. 60, 62. 
Stout V. Company, 2 Dill. C. C. 294, p. 

Stover V. Bluehill, 61 Me. 439, p. 247. 
Street v. Ingwell, Seld. N. P. 851, p. 97. 
Strong V. Bradley. 14 Vt. 55, p. 228. 

V. Campbell, 11 Barb. 135, p. 26. 
Stryker v. Merseles, 4 Zab. 642, p. 217. 
Stuart V. Whittaker, 2 Car. & P. 100, p. 

Studdard v. Linvllle, 3 Hawks, 474, p. 

Sturt V. Blagg, 10 Q. B. 906, p. 81. 
Sullivan v. Carberry, 67 Me. 631, p. 98. 
t*. Company, 9 Bush, 81, p. 

r. Company, U. S. C. Ct. Neb. 

1 Cent. L. J. 696, p. 33. 
V. Mississippi &c. 11 Iowa, 
421, pp. 261, 264. 
Summers v. Camden. 26 Ark. 276. p. 11. 
Sumner r. Utlev, 7 Conn. 257, p. 76. 
Sutton V. Board, 41 Miss. 2:^>, p. 229. 

V, Clark. 6 Taunt. 29, pp. 19, 21, 
Sveuson v. Company, 67 N. Y. 108, p. 

Swain v. Stafford, 4 Ired. 392, p. 89. 
Sweetapple v. Jessie, 6 B. & Ad. 27, p. 

Swett r. Gutts, 60 N. H. 439, pp. 138, 

161, 177. 
Swift V, Winterbotham, Law B. 8 Q. B. 

244 P. 283 
Sykes v. Sykes, 3 Barn. & C. 641, p. 284. 


Taafe v. Downes, L. R. 3 Com. P. 36, 

pp. 208, 213. 
Tabbe v. Matthews, 1 Bulst. 109, p. 66. 
Talbot V, Case, Cro. Eliz. 317, 823, pp. 

Tapham v. Curtis, 6 Vt. 321, p. 139. 



Tapp V. Lee, 3 Bob. & P. 367, p. 283. 
Tarlton t* . Fisher, 2 Doug. 671, p. 55. 
Tarrant v. Webb, 18 Com. B. 805, p. 

Tarry v. Newman, 15 Mees. & W. 645, 

p. 209. 
Taunton v. Costar, 7 T. K 431, p. 120. 
Tawney v. Lynn, 16 L. J. Cb. 282; 1 

Mylne & K. 162, p. 19. 
Taylor v. Ashton, 11 Mees. & W. 401, 
p. 280. 
V. Atchison, 54 IlL 196; S. C. 5 

Am. B. 118, p. 286. 
V, Hall, 2 Strange, 1189, p. 76. 
V. Leith, 26 Ohio St. 428, p. 281. 
V. Neri, 1 Esp. 386, p. 234. 
v. Plymouth, 8 Met. 462, p. 197. 
V. Bainbow, 2 Hen. & M. 423, 

p. 269. 
V. Shafto, 8 Best. & S. 228, p. 

V. Short, 40 Ind. 506, p. 71. 
V, St. Louis, 14 Mo. 2U, p. 11. 
V. Whitehead, 2 Doug. 749, pp. 
13, 18. 
Teagarden v. Graham, 31 Ind. 422, p. 

Tebbetts v. Coding, 9 Cray, 254, p. 66. 
Tenney v. Minerr Ditch Co. 7 Cal. 

335, p. 142. 
Terre Haute v. Turner, 36 Ind. 522, p. 

Terrell v. County, 44 Mo. 309, p. 226. 
Terwilliger v. Wands, 17 N. Y. 54, pp. 

72 73. 
Thayer V. Brooks, if Ohio. 491, p. 197. 
V. Company, 22 Ind. 29, p. 257. 
Thom V. Bigland, 8 Ex. 725, pp. 280, 

Thomas v. Axworth, Hob. 2, p. 66. 

V. Chuston, 2 Best. & S. 475, p. 

V. Bouse, 2 Brev. 75, p. 90. 
V. Bussell, 9 Ex. 764, p. 91. 
Thompson v. Bernard, 1 Camp. 48, p..7L 
> V. Company, 54 Ga. 509, p. 
V. Company, 51 Mo. 190, p. 

v. Grimes, 5 Ind. 385, p. 71. 
V. Knott, Yel. 144, p. 68. 
V. Boss, 5 H. & N. 16, pp. 

44 47. 
V, Shakeli, 1 Mood. & M. 

187 P 79 
V. Shatt'ucic, 2 Met. 615, p. 

v. Toland, 48 Cal. 99, pp. ia% 
Thorn v. Blanchard, 5 Johns. 508, p. 81. 
Thorogood v, Bryan, 8 Com. B. 115, p. 

Thurber v. Martin, 2 Gray, 394, p. 196. 
Thurston v. Hancock, 12 Mass. 221, pp. 
14, 60, 131, 135. 
V, St. Joseph, 51 Mo. 510, p. 
Timm v. Bear, 29 Wis. 254, p. 194. 
Timothy v. Simpson, 1 Cromp. M. & B. 
757, p. 56. 

Timothy v. Simpson, 6 Car. & P. 500, 

p. 37. • 
Tinker v. Morrill, 39 Vt. 477, p. 95. 
Tinsley v. Nassau, Mood. & M. 52, p. 

Tlnsman v, Belvidere Company, 2 

Dutch. 148, p. 22. 
Tipton V. Kahle, 3 Watts, 90, p. 70. 
Tobey o. Leonard, 15 Mass. 200, p. 228. 
Tobin V. Addison, 2 Strob. 3, p. 222. 
Todd V. Cochell, 17 Cal. 97, p. 130. 

V, Hastings, 2 Saund. 307, p. 76. 
v. Hawkins, 2 Mood. & B. 21, p. 

V. Old Colony &c. 3 Allen, 18» p. 
Tolbisch v. Tarbell, 10 Allen, 385, p. 30. 
Toledo &c Co. v. Conray, 61 111. 162, 

p. 2(S1. 

Toledo &c. V. Harmon, 47 111. 298, p. 266. 
Toledo &c. v. Pindar, 53 HI. 447.pp. 235, 

ToUe v. Correth, 31 Tex. 362, p. 19& 
Tomlinson t;. Warner, 9 Ohio, 104, p. 91. 
Tompkins o. Sands, 8 Wend. 4^ pp. 

210 219. 
Tootle V, Clifton, 22 Ohio St. 247, p. 188. 
Torbett v. Clare, 9 1. L. R. 86, p. 70. 
Tourtellot v. Phelps, 4 Gray, 376, p. 196. 
T#zer v. Child, 7 El. & B. 383, p. 210. 
Tracy v. Swartwout, 10 Peters, 80, p. 

Travis o. Burger, 34 Barb. 614, pp. 44, 

Traylor v. Horrall, 4 Blackf. 317, p. 94. 
Tread well v. Davis, 34 Cal. 606, p. 114. 
Trow V. Company, 24 Vt. 487, p. 245. 
Trull V. Howland, 10 Cush. 109, p. 217. 
Truro &c. Company v, Bradley, 3 

Macn. & G. 341, p. 62. 
Trustees t\ Utica, 6 Barb. 313, p. 68. 
Tuck V. Downing, 76 111. 71, pp. 278, 

281, 285. 
Tucker v. Chaplin, 2 Car. & K. 730, pp. 

Tuff V. Warman, 5 Com. B. N. S. 573, 

pp. 243, 272. 
Tunney v. Company, Law B. 1 Com. P. 

291, p. 258. 
Turner v. Ambler, 10 Q. B. 252, pp. 90, 
V. Dartmouth, 13 Allen, 291, p. 

V. Meymott, 1 Blng. 158, p. 120. 
Turnpike Road v. ChaAipney, 2 N. H. 

190, p. 210. 
Tutler V. Alwin, 11 Mod. 221, p. 76. 
Tweed v. Insurance Co. 7 Wiul. 44, p. 

Twitchell v. Shaw, 10 Cusfa, 46, pp. 221, 

Tyler v. Alford, 38 Me. 530, p. 209. 

V. Wilkinson, 4 Mason, 400, pp. 
174, 179, 194, 195, 196, 204. 
Tyrringliam's Case, 4 Rep. 386, p. 120. 



Underwood v. Hewson, 1 Str. 596, pp. 

269 270. 
V. Robinsoii, 106 Mass. 296, 

pp. 51, 218. 
V. Waldron, 33 HicL. 232, 
p. 139. 
Union &c. V. Kottinffbam, 17 Gratt, 

115, p. 299. 
Union Water Co. v. Grary, 25 Gal. 604, 

pp. 206, 206. 
Upoam V. Dickinson, 50 111. 97, p. 71. 
Upton o. Trlbilcock, 91 U. S. 45, p. 279. 
V, Vail, 6 Johns. 182, p. 10. 

Vandenbnrgh v. Troax, 4 Denio, 464, 

pp. 233, m. 
Vanderbilt v. Gompany, 2 N. Y. 479, p. 

V. Mathis, 5 Duer, 304, p. 89. 
Vanderbeyden v. Young, 11 Johns. 150, 

p. 209. 
Vanderplank v. Miller, 1 Moody & M. 

160, p. 230. * 

Yanderwlele v, Taylor, 65 K Y. 341, p. 

Tan Duaer v. Linderman, 10 Johns. 

106, pp. 80, 90. 
Van Epps v. Harrison, 5 Hill, 63, p. 278. 
Van Hoesen v, GoYentry, 10 Barb. 518, 

p. 196. 
Yan Lenvin v, £ike, 1 N. Y. 515; 4 

Denio, 127, p. 96. 
Yan Bensselaer v. Dole, 1 Johns. Gas. 

279, p. 70. 
Yan Steenbergh v, Bigelow, 3 Wend. 

42, p. 210. 
Yan vacter v. McKillip, 7 Blackf . 578, 

p. 44. 
Yan Yalkenburg v. Thayer, 57 Barb. 

196, p. 96. 
Yaugh V, MenloYe, 7 G. &-P. 526; 32 £. 

C.X. 613„p. 236. 
Yaiighn v. Company, 3 Hurl. & N. 743, 

p. 274. 
Yaoghan v. Havens, 8 Johns. 109, p. 69. 
V. Rhodes, 2 McC. 227, p. 48. 
Yauz r. Sheffer, 8 Moore P. C. C. 75, p. 

Yenard v. Woton, Cro. Eliz. 166, p. 66. 
Yere v. Lord Cawdor, 11 East, 668, p. 96. 
Yerholf v. Yon Honwenlengen, 21 Iowa, 

429, p. 50. 
Yemon v. Keyes, 12 East, 632, p. 11. 
Yicksburg v. Henuessy, 54 Miss 301, 

p. 245. 
Yicksborg &c. v. Wilkins, 47 Mass. 404, 

p. 248. 
Yincent v. Stinehour, 7 Yt. 62, pp. 269, 

Yirtue t. Bird, 2 Lev. 196, p. 242. 
Yosburgh v. Welch, 11 Jonns. 174, p. 

Yossel V, Cole, 10 Mo. 636, p. 50. 

Waddell v. Mayor, 8 Barb. 96, p. 11. 
Wade V. Walden, 23 111. 425, p. 91. 
Wadhurst v. Damane, Gro. cfac. 45, p. 

Wadsworth v. Tillotson, 15 Conn. 366, 

pp. 196, 196r 
Waffle V. Company, 58 Barb. 413; & G. 

53 N. Y. 11, pp. 197, 206. 
Waffle t;. Porter, 61 Barb. 130, p. 177. 
Waite V, Northeastern By. Co., El. B. 

& E. 719, pp. 249, 260. 
Wakefield v. Buocleugh, Law B. 4 Eq. 

624, p. 128. 
Wakeman v. Dalley, 51 N. Y. 27, p. 285. 
V. Robinson, 1 Bing. 213 ; 8 
Moore, 63, p. 269. 
Walden v. Dudley, 49 Mo. 419, p. 218. 

V. Mitchell, 2 Yent. 265, p. 68. 
Walker v. Ebert, 29 Wis. 194, p. 286. 
V. Ellis, 1 Sneed, 515, p. 247. 
V, Hallack. 32 Ind. 239, p. 210. 
Wall V. Hoekins, 5 Ired. 177, pp. 66, 68. 
V. McNamara, 1 T. R. 636, p. 229. 
V. Trumbull, 16 Mich. 228, pp. 210, 
Waller v. Company, 32 Law J. Ex. 206, 

p. 268. 
Waller v. Sample, 25 Pa. 275, p. 90. 

V. Selfe, 4 De Gex A S. 315, p. 
Walmesley v. Russell, 2 Salk. 696, p. 

Walser v. Thies, 66 Mo. 89, p. 91. 
Walsh V. Gompany, 110 Mass. 23, p. 252. 
V. Company, 52 Mo. 434, pp. 239, 
Warburton o. Gompany, Law B. 2 Ex. 

30, p. 265. 
Ward f. Weeks, 7 Bing. 211, p. 234. 

V. Smith, 4 Car. & P. 306, p. 73. 
Wardens v. Doune, 3 Scott, 356, p. 21. 
Ware v. Brown, 2 Bond, 267, p. 227. 
Warner v. Company, 39 N. Y. 470, pp. 
248, 267, 261. 
V. Company, 44 N. Y. 465, p. 

V. Gompany, 39 Gush. 468, p. 

V. Paine, 2 Sand. Gh. 196, p. 84. 
V. Shed, 10 Johns. 138, pp. 215, 
Warren Bank v. Parker, 8 Gray, 221, 

p. 229. . 
Washington Savings Bank r. Eoky, 51 

Mo. m, p. 286. 
Wason v. Walter, Law R. 4 Q. B. 73, 

p. 80. 
Waterer v. Freeman, Hob. 266, pp. 3, 

Watkins v. Baird, 6 Mass. 506, p. 01. 
Watling V, Oastler, Law B. 6 Ex. 73, 

p. 262. 
Watson V. Christie, 2 Bos. & P. 224, p. 
V. Hampton, 2 Bibb, 319, p. 69. 
r. Pouhion, 15 Jur. 1112, p. 283. 



Watson V. Vanderlash, Het. 71, pp. 74, 
V. Watson, 9 Conn. 140, p. 221. 
Watts V, Rymer, 1 Vent. 213, p. 68. 
Way V. Townsend, 4 Allen, 114. p. 210. 
Weaver v. Bnsh, 8 T. B. 78, p. 87. 

v. Devendorf, 3 Denio, 117, p. 

V. Eureka Lake Go. 15 Cal. 273, 

p. 206. • 

V. Ward, Hob. 134, pp. 32, 269. 
Web ». Poor, Cro. Eliz. 669, p. 65. 
Webb 0. Bachelour, Vent. 273, p. 209. 
V. Company, 57 Me. 117, p. 239. 
V. Company, 49 N. Y. 420, 3 Lans. 

453, pp. 235, 238. 
V. Company, 3 Sum. 189, p. 196. 
V. Manchester &c. 4 Myjne & C. 
116, p. 19. 
Webber v. Gay, 24 Wend. 485, pp. 218, 

Webster v. Company, 38 K. Y. 260, p. 

Webster v. Watts, 11 Q. B. 311, p. 37. 
Weed V, Case, 55 Barb. 534, pp. 279, 
V, Panama R. R. Co. 17 K. Y. 
362. p. 265. 
Weedon v. Tlmbrell, 5 T. R. 357; 3 

Wils. 319. p. 49. 
Weger r. Comiiany, 55 Pa. 460, pp. 256, 

257, 258, 261. 
Weimer v. Lowry. 11 Cal. 104, p. 206. 
Weir V. Hoss, 6 Ala. 881, p. 73. 
Welch V. Board &c. 23 Iowa, 199, P. 25. 
Welfare v. Company, Law R. 4 Q. B. 

693. p. 38. 
Wellington v, Wentwortb, 8 Met. 548, 

ellock V. Constantino, 2 Hurl. & C. 
146, p. 20. 
Wells V. Atlanta, 43 Ga. 67, p. 233. 
Wenman t). Ash, 13 Com. B. 845, p. 81. 
West V. Company, 63 HL 545, p. 26.3. 
West River Bridge Co. v. Dix, 6 How. 

545, p. 18. 
Western &c. v. Adams, 55 Ga. 279, p. 

Western College &c. v. City, 12 Ohio 

St. 376, p. 24. 
Western College v. Cleveland, 12 Ohio 

N. S. 376, p. 224. 
Western Union &c. t\ Quinn, 66 111. 

319, p. 243. 
Weston t. Bear River & Auburn Water 
and Mining Company, 6 
Cal. 425, p. 102. 
v. Beeman, 27 Law J. Ex. 57, 

p. 91. 
V, Woodcock, 7 Mees. & W. 
14, p. 98. 
Wharton o. Brook, 1 Vent. 21, p. 74. 
Wheatley v. Baugli, 25 Pa. 633; pp. 131, 
132, 160, 152, 163, 161, 184, 
V. Chrisman, 24 Pa. 298, pp. 
I<t3, 196. 
Wheeler & Appleton's Case, Godb. 

340, p. 65. 
Wheeler t;. City, 19 Ohio St. 19, p. 24. 

Wheeler v. Westport, 30 Wis. 392, pp. 
239 245. 
r. Whiting," 9 Car. & P. 266, 

p. 37. 
V. Worcester, 10 Allen, 501« 
p. 13. 
Wheelock v. Company, 106 Mass. 203, 

pp. 239, 245. 
Wnetstone v. Bowser, 6 Casey, 69, pp. 

163, 185. 
Whipple V, Fuller, 11 Conn. 581, p. 90. 
White V. City, 27 Miss. 327, p. 11. 

V. Marshfleld, 48 Vt. 20, p. 224. 
V, Nichols, 3 How. 266, p. 77. 
V. Spettigue. 13 Mees. & W. 603, 

pp. 20, 33. 
V. Tucker, 16 Ohio St. 468, p. 91. 
Whitfield t*. Lord de Despenser, Cowp. 

765, p. 222. 
Whitford v. Company, 23 N. Y. 466, 

476, p. 34. 
Whiting V. Brastow, 4 Pick. 310, p. 96. 

V. Hill, 23 Mich. 399, p. 281. 
Whitworth v. Hall, 2 Bam. & AdoL 

695, p. 91. 
Wigford V. Gill, Cro. Eliz. 269, p. 93. 
Wiggett V. Fox, 11 Ex. 832; 26 Law J. 

Ex. 193, pp. 257, 261, 264. 
Wiggin V, Coffin, 3 Story, 1, p. 89. 
WiflKins v. Hathaway, 6. Barb. 632, p. 

Wiirmore ». Jay, 5 Ex. 368, pp. 34, 262. 
Wilbrahara t;. Snow, 2 Wms. Sannd. 

47d, p. 93. 
Wilds 0. Company, 44 N. Y. 430, p. 239. 
Wildes V. Russell, L. R. 1 Com. P. 730, 

p. 208. 
Wiley i;. Belfast, 61 Me. 669, p. 234. 
Wilkes V. Dinsman, 17 How. 128, p. 42. 
Willetts V. Company, 14 Barb. 585, p. 


Wiliiams v. Bagnall, 12 Jur. K. S. 967, 

p. 127. 

V. Bayley, L. R. 1 H. L. 200; 

13 Mees. & W. 608, p. 20. 

V. Cameron, 26 Barb. 172, p. 


17. iCawley, 18 Ala. 206, p. 70. 

V. Clough, 3 Hurl. & K. 258; 

27 Law J. Ex. 326, pp. 

253 262. 

V, Clough, 3 Hen. & M. 213, 

D. 252. 
V. Company, 2 Mich. 259, p. 

V. Gale, 3 Har. & J. 231, p. 

r. Gardner, 1 Mees. & W. 

246, p. 60. 
V. Morland, 2 Barn. & C. 910, 

pp. 174, 195. 
V. Mostyn, 4 Mees. & W. 

144 P. 15. 
V. New* York, 18 Barb. 222; 
16 N. Y. 97, p. 62. 
Willans i\ Taylor, 6 Bing. 183, pp. 89, 

Wills v. Maccarmick, 2 Wils. 148, p. 210. 
Wilmarth v. Burt, 7 Met. 257, pp. 217, 



^Wflner v. Hold, Gro. Gar. 489, p. 65. 
Uniaon v. Glous, 2 Spear, 1, p. 72. 

V. Ooit, 17 N. Y. 442, pp. 72, 78. 

V. Halifax, L. B. 3 Ex. 114, p. 24. 

v. Little, 2 Gomst. 443, p. 107. 

V. Hayor, 1 Den. 699, pp. 11, 19, 

V, McLaughlin, 107 Mass. 587, 

p. 94. 
V. Merry, Law B. 1 Scotch & 

Div. App. 326, p. 257. 
V. Kew Bedford, 108 Bfass. 261, 

pp. 138. 162, 177. 
V. Kewberry, L. B. 7 Q. B. 31, 

p. 27. 
V, Nations, 5 Yerg. 211, p. 77. 
V. New York, 1 Denio, 505, pp. 

V. Oliphant, Wright, 153, p. 72. 
V, Peto, 6 Moore, 49, p. 269. 
V. Bunyon, Wright, 651, p. 74. 
tf . Tatum, 8 Jones N. G. 300, p. 

o. Webster, 7 Gar. & P. 198, p. 
Wlltou M. Go. V. Batler, 34 Me. 431, pp. 

Wilton t'. Webster, 7 Gar. & P. 198, p. 

Winans v. Taylor, 6 Bing. 183, p. 89. 
Windsor o. Oliver, 41 Ga. 538, p. 74. 
Wingate tf. Waite, 6 Mees. & W. 739, 

p. 206. 
Winter v. Belmont Mining Gompany. 
Supreme Gourt of Galiiomia, Jan. 
13ui, 1879; Pacific Law Beporter, 
Jan. 25th, 1879 ^ unreported); S. G. 
Oct. 9th, 1877, pp. 101, 102, 103. 
Winter v. Henn, 4 G. & P. 498, pp. 22, 
v. Henn, 4 Gar. & P. 494, p. 49. 
Wintezbum v. Brooks, 2 Gar. & K. 16, 

p. 38. 
Winsmore v. Greenbank, Willes, 577, 

_p. 8. 

rell V. Brinson, 10 Ired. 554, p. 267. 
Wittam's Gase, Noy, 116, p. 68. 
Wolf V. St. Louis Ind. W. Go. 10 Gal. 

541, p. 143. 
Wonder v. Gompany, 32 Md. 411, pp. 

262, 263, 266, 267, 261. 

Wood V. Glapp, 4 Sneed, 65, p. 276. 
V. Gunston, Style, 462, p. 84. 
V. Mauley, 11 Ad. & E. 34, p. 117. 
V. Buland, 10 Mo. 143, p. 227. 
V, Waud, 3 Ex. 748, pp. 16, 174, 
176, 193, 195, 203, 206. 
Woods r. Davis, 34 N. H. 328, pp. 215, 

220 221 
Wooif V. Ghalker, 81 Gonn. 121, pp. 40, 

Woolnoth V. Meadows, 6 East, 468, p. 

Worley v. B. B. 1 Handy, 481, p. 34. 
Wright v. N. Y. Gentral B. B. Go. 25 
N. Y. 562, pp. 40, 248. 249, 
262, 267. 
V. Gompany, 20 Iowa, 196, p. 

o. Flynn, 33 Iowa, 169, p. 284. 
t*. Howard, 1 Sim. & St. 190, 

pp. 174, 178, 196. 
V. Lindsay, 20 Ala. 428, p. 70. 
I?. Wilcox. 19 Wend. 343, p. 266. 
V. Wilson, 19 Wend. 343, p. 266. 
W. T. Gompany v. Marshall, 37 Barb. 

609, p. 113. 
Wyatt V. Buell. 47 Gal. 624, p. 88. 

v. Harrison, 1 Law J. N. S. K. 

B. 237; 3 Bam. & Adol. 871, 

p. 134. 

V. Willian^s, 43 N. H. 106, p. 34. 

Wyndham v. Wycombe, 4 Esp. 16, p. 


Yates v. Lansing, 5 Johns. 291; 9 Ibid. 
8U6, pp. 208, 209, 213. 
V. Beed, 4 Blackf . 463, p. 29. 
Yearsley v. Heane, 14 Mees. & W. 322, 

p. 216. 
York t». Cecil, 1 Brownl. & G. 18, p. 

V. Pease, 2 Gray, 282, p. 79. 
Young V. Gommissioners. 2 Nott & 
McG. 637, p. 228. 
V, Hicheus, 6 Q. B. 606, p. 17. 
V. Spencer, 10 Bam & G.<146, p. 

V, Vaughan, 1 Horst. 331, p. 98. 


Accident— inevitable, p. 269. 

Aoqnieftoence in injuries— p. 22. 

Acquittal— necessary to be shown in actions for malicious prosecution, p. 89. 

Act of Ood— injuries through, pp. 17, 26, 27, 81. 

Act of LegiBlature— nuisances authorized by, p. 62. 

Actio personalis moritnr cum persona— p. 34. 

Actionable ^vords— qualified by other words, p. 70. 

Actionable— words not, p. 65. 

Actions, civil— malicious prosecution of, p. 90. 

Asricnltnral and mining possessions— p. 146. 

Adjacent soil— support from, pp. 130, 136. 

Adjacent lands— injuries to, pp. 130, 136, 148, 154. 

Advice— professional, as a defense in actions for malicious prosecution, p. 89. 

Animals— injuries from, p. 43. 

injuries to, p. 96. 
Aqna ourrit et debe ouxrere, etc.— p. 206. 
Argument— privilege of counsel in, p. 82. 

under control of the court, p. 87. 

responsibility of counsel in, p. 87. 

publication of, p. 88. 
Arrests— lawful, p. 54. 

Artificial ^vater-courses— injuries to, pp. 198, 203. 
Assault— p. 34. 

in self-defense, p. 37. 

in defense of relatives, p. 38. 

in defense of friends, p. 38. 

moderate correction by parents, p. 38. 
Assumption of family names— p. 19. 
Attorneys— responsibility of judicial officers for striking their names from the 

rolls, p. 211. 


Belief of plaintiff— in actions of deceit, etc., pp. 281, 285. 

Blasting— injuries from, p. 145. 

Boards of education- injuries from acts of, p. 210. 

Breaches of trust— technical, p. 99. 

Business— words affecting, p. 73. 

Burden of proof— cases of negligence, p. 245. 

818 INDEX. 


Causa projdma et non remota apeotatur— p. 236. 
Caveat emptor— pp. 4, 282. 
Charge— of false swearing, p. 71. 

truth of, as a justification in slander suits, p. 76. 
Chattels— conversion of, p. 92. 

limited inteTference with, p. 91. 

found, p. 95. 

received as security, pT 96. 

annexed to realty, p. 98. 

negligent management of, p. 269. 
Children— injuries by, p. 29. 

injuries to, p. 249. 
City's liability— for pollution of water by sewage, p. 19T. 
Claasifioation of torts- p. 4. 
Commanders of vessels- imprisonment by, p. 66. 
Commissioners of pnblio works— nuisances by, p. 63. 
Companies incorporated— pp. 99-116. 

injuries to holders and owners of stocks and shares in, p. 99. 
See Stocks and Shabbs. 
Commnnioations^privileged, pp. 77-88. 


Connivance of plaintiff— in certain actions, pp. 49, 00. 
Consent to injuries— p. 22. 
Consequences, remote— pp. 233-236. 
Consortium— loss of, pp. 49, 60. 
Contemporaneous negligence— p. 272. 
Control of court over argument— p. 27. 
Contributory negligence— pp. 14, 238-272. 

on part of servants, p. 248. 

injuries to children, p. 249. 

injuries to servants, pp. 260, 261. 

injuries from fellow-servants, p. 266. 

contemporaneous negligence, p. 272. 
Conversion— of goods, p. 93. 

of stocks, p. 91. 

by pledgee, p. 111. 
Corporations — municipal, non-exercise of i>ower8 by, p. 28. 

damage done by, p. 20. 
Correction of children— by parents, p. 38. 
Counsel— privilege of, in argument, p. 82. 

responsibility of, in argument, p. 87. 

publication of argument of, p. 88. 

argument of, under control of the Court, p. 87. 
Court's control— over argument, p. 87. 
Cre'ws — injuries to, by masters of Bbii>s, p. 41. 
Criminal conversation— pp. 43, 49. 
Criticism— &07ia./I(ie, p. 79. 
Cujus est solimi, ejus est usque ad cesium- p. 161. 




Damage— defined, p. 7. 
Damages— from lawful acts, p. 11. 
remote and proximate, p. 233. 
Damnum— defined, p. 7. 
Damnum absque injuria— defined, pp. 1-10, 6. 

See Definitions. 
illostrations of the doctrine, pp. 11-27. 

See Illustbations. 
personal injuries, pp. 28-50 

See Injuries and Personal Injuries. 
injuries to liberty of person, pp. 51-66. 

See Liberty or Person and Injuries. 
injuries to health, nuisances, pp. 57-63. 

See Nuisances and Health, Injuries to. 
injuries to reputation, pp. 61-91: 

See Slander and Libel, Malicious Prosecution. • 

injuries to personal property, pp. 92-98. 

See Property and Personal Property. 
injuries to holders and owners of stocks and shares in incorporated com- 
panies, pp. 99-116. 

See Stocks and Shares, Conversion. 
injuries to real property, pp. 117-121. 

See Beal Property. 
injuries from mining operations, pp. 122-147. 

See Mining Operations and Water-Biobts. 
injuries to water-rights, pp. 148-206. 

See Water-Bights. 
injuries from acts of public officers, pp. 207-229. 

See Officers, Public Officers. 
injuries from negligence, pp. 230-276. 

See Negligence. 
injuries from fraud, deceit, and misrepresentation, pp. 277-286. 

See Deceit, Fraud, Misrepresentation. 
Dangerous elements and substances— p. 26. 
Death— injuries resulting in, p. 32. 
Deceit, fraud, -and misrepresentation— pp. 277-286. 
deceit, fraud, and misrepresentation, p. 277. 
what must be shown or the action fail, p. 277. 
the representation, p. 278. 
knowledge of falsity, p. 280. 
ignorance and belief of the plaintiff, p. 281. 
equal means of knowledge, p. 282. 

the intention that the representation should be acted upon, p. 282. 
acting upon the representation, p. 283. 
waiver of fraud, p. 284. 
expressions of opinion and belief, p. 285. 
negligence of innocent parties, p. 285. 
Defamation— pp. 64-88. 

See Slander and Libel. 
Defendant's proof— in actions of malicious prosecution, p. 91. 

820 INDEX. 

Defense— of relatives, p. 38. 
of friends, p. 38. 
of self, p. 37. 
Definitions— pp. 1-10. 

definition of a tort, p. 2. 

** damnum absque injuria" p. 6. 
injuria sine damnOt p. 9. 
damage, p. 7. 
ir^uria^ p. 7. 
damnum^ p. 7. 
De minimis non curat lez— p. 15. 
Detentions— justifiable, p. 55. 

Discomfort— personal, as a ground for an action, p. 57. 
Distress — mental, when no remedy for, p. 59. 
Ditch property— lateral support to, p. 136. 
Diversion— of subterranean waters, pp. 148, 154. 
of hidden springs, pp. 148, 154. 
by well-digging, pp. 148, 154. 


Bdnoation— injuries from acts of boards of, p. 210. 

Blements— escape of dangerous, p. 26. 

Bmbankments and wharves— erecting, pp. 4, 11. 

Eminent domain— p. 17. 

Entries— justifiable on real property, pp. 119, 120. 

Equitable owners of stock— injuries suffered by, p. 111. 

Escape— of dangerous elements, etc., p. 26. 

Excavations— in one's own property, injuries from, pp. 13, 23. 

Ex damno sine injuria non oritur actio— p. 2. 

Executive o£Bcers— injuries from acts of, p. 223. 

False swearing— charge of, p. 71. 

False imprisonment— p. 51. 

Falsity— knowledge of, actions of deceit, etc., p. 280. 

Family names— assumption of, p. 19. 

Felonies— injuries from, p. 20. 

Fire— injuries from, p. 235. 

Fishing on the high seas— p. 16. 

Fixtures- removal of, p. 98. 

Flooding— pp. 132, 136, 206. 

Franchises — injuries from grantees of, p. 20. 

Fraudulent representation as to stock— p. 115. 

Fraudulent working of mines— p. 145. 

Fraud, misrepresentation, and deceit— injuries through, pp. 277-286. 

deceit, fraud, and misrepresentation, p. 277. 

what must be shown or the action fail, p. 277. 

the representation, p. 278. 

knowledge of falsity, p. 280. 

ignorance and belief of the plaintiff, p. 281. 

INDEX. 821 

Fraud, misrepresentation, and deceit— Continued. 
Aqnal means of knowledge, p. 282. 

the intention that the representation should be acted on, p. 282 
acting upon the representation, p. 283. 
waiver of fraud, p. 28i. 
expressions of opinion and belief, p. 286. 
negligence of innocent parties, p. 285. 


Qrade of streets— changing, p. 11. 
Grantees of franohises— injuries by, p. 20. 
Goods — conversion of, p. 93. 


Health— injuries to, nuisances, pp. 57-63. 

personal discomfort, p. 57. 

mental distress, p. 59. 

obstruction of lights, p. 60. 

nuisances authorized by act of Legislature, p. 62. 

exercise of statutory powers, p. 62. 

trustees and commissioners of public works, p. 63. 
Hidden springs— diversion of, injuries to, pp. 148, 154. 
Highways— damages from construction of, p. 13. 

injuries from acts of supervisors of, p. 228. 
Hitohing horses— p. 98. 
Holders and owners of stocks— injuries to, p. 99. 

See Stocks and Shakes. 
Horses— hitching, p. 98. 
Husband's infidelity— p. 50. 

neglect of wife, p. 50. 


Idiots— injuries by, p. 29. 

Ignorance of plaintiff— in actions of deceit, etc., p. 281 

Iron w^orks— noise from, p. 145. 

ninstrations— of the doctrine of damnum cibsque ir^urtdy p. 11. 

damages from lawful acts, p. 11. 

use of one's own property, p. 13. 

contributory negligence, p. 14. 

trifling injuries, p. 15. 

interference with trade, p. 16. 

injuries committed through necessity, p. 17. 

rules of public policy, eminent domain, p. 17. 

assumption of family names, 19. 

injuries arising from felonies, p. 20. ^ 

injuries by grantees of franchises, p. 20. 

consent to or acquiescence in injuries, p. 22. 

D. A. I.— 21. 

822 INDEX. 

nioBtrations— Continued. 

non-exercise of power by municipal corporatlonB, p. 23. 

publication of uncalled-for letters, p. 24. 

infringement of patents, p. 25. 

escape of dangerous elements or substances, p. 26. 
Imprisonment— false, p. 51. 

by conmianders of vessels, p. 56. 
Improvements— damage done by making, p. 21. 

Incorporated oompanies— injuries to holders and owners of stocks and 
shares in, pp. 99, 111. 
See Stocks and Shares. 
Increasing the flow^ of "grater— damage by, p. 206. 
Indorsers— liability of, actions of deceit, etc., p. 284. 
Inevitable aooident— p. 269. 
Infants— injuries by, p. 29. 
Infidelity of husband- p. 50. 
Infringement of patents— p. 25. 
Injuria defined— p. 7. 
Injuria sine damno defined— pp. 3, 9, 283. 
Injuries— trifling, p. 15. 

committed through necessity, p. 17. 

from felonies, p. 20. 

by grantees of franchises, p. 20. 

consents to, p. 22. 

acquiescence in, p. 22. 
Injuries through deceit, fraud, and misrepresentation— pp. 277-286. 

deceit, fraud, and misrepresentation, p. 277. 

what must be showu or the action fail, p. 277. 

the representation, p. 278. 

knowledge of falnity, p. 280. 

ignorance and belief of the plaintiff, p. 281. 

equal means of knowledge, p. 282. 

the intention that the representation should be acted upon, p. 282. 

acting upon the representation, p. 283. 

waiver of fraud, p. 284. 

expressions of opinion and belief, p. 285. 

negligence of innocent parties, p. 285. 
Injuries to health— nuisances, pp. 57-63. 

personal discomfort, p. 57. 

mental distress, p. 59. 

obstruction of lights, p. 60. 

nuisances authorized by act of legislature, p. 62. 

exercise of statutory powers, p. 62. 

trustees and commissioners of public works, p. 63. 
Injuries to holders and ow^ners of stocks and shares in incorporated 
companies, conversion of stocks, etc., p. 99. 

injuries suffered by purchasers of stock, p. 99. 

technical breaches of trust, p. 99. 

injuries suffered by equitable owners of stock- conversion by pledgee, 

p. 111. * 

sale of mining stock, fraudulent representation, rescission, p. 115. 
stock stolen, pp. 101, 116! 
Injuries to real property— pp. 117-121. 
trespasses on real property, p. 117. 

INDEX. 323 

Injuzles to roal propexty^Continued. 

landlord's right to enter, p. 119. 

jastifiable entries, p. 120. 

self-liberation, p. 120. 
Injaries to liberty of person— pp. 51, 66. 

false imprisonment, p. 51. 

what does not constitute imprisonment, p. 51. * 

lawful arrests, p. 54. 

justifiable detentions, p. 65. 

imprisonment by commanders of vessels, p. 56. 
InjnrieB to properl^ resulting from mining op^rations—pp. 122, 147. 

right of surface support, common-law presumptions, p. 122. 

express grant of right to surface support, p. 129. 

support from adjacent soil, p. 130. 

lateral support to ditch property, p. 136. 

flooding, p. 136. 

upper and lower level, p. 143. 

mining operations regarded as nuisances, pp. 144; 145. 

fraudulent working, p. 145. 

prior i)ossession of lands adjoining mines, p. 146. 

right of oldest locator, p. 147. 

injuries to adjoining lands, pp. 148, 154. 
Injuries from negligence— pp. 230-276. 

Injuries from negligence, p. 230. 

remote and proximate damages, p. 233. 

remote consequences, p. 234. 

remote consequences, injuries from fire, p. 235. 

injuries caused by railway locomotives, p. 238. 

contributory negligence, p- 238. 

plaintiffs duty to prevent injury, p. 245. 

contributory negligence on part of servants, p. 248. 

contributory negligence, injuries to children, p. 249. 

negligence of master, injuries to servants, p. 250. 

injuries to servants, exemption of master, p. 251. 

injuries to servants from their fellow-servants, p. 266. 

negligence of servants, p. 265. 

negligent management of chattels, inevitable accident, p. 269. 

successive negligence of two or more, p. 270. 

contemporaneous negligence, p. 272. 

intervening negligence, p. 272. 

mutual negligence, p. 273. 

negligence of medical men, p. 275. 
Injuries, personal— pp. 2&-43. 

by infants, p. 29. 

by non-compotes, p. 29. 

resulting in death, p. 32. 

assault, p. 34. 

assaults in self-defense, p. 37. 

defense of relatives, p. 38. 

defense of friends, p. 38. 

moderate correction by parents, p. 38. 

to licensees, p. 38. 

to workmen, p. 39. 

to trespassers, p. 40. 

824 INDEX. 

Injnries, personal— Contintied. 

by masters of ships upon their crews, p. 41. 
from animals, p. 43. 
Injuries to personal property— pp. 9S^-g6. 
injuries to property, p. 92. 

injuries to personal property arising from necessity, p. 92. 
conversion of goods, etc., p. 93. 
limited interference with chattels, p. 94. 
chattels found, p. 95. 
chattels received as security, p. 96. 
injuries to animals, p. 96. 
hitching horses, p. 98. 
Injuries from aots of publio offloers— pp. 207-229. 
judicial officers, liability of, p. 207. 
responsibility of judicial officers for striking attomey*s name from the 

rolls, p. 211. 
ministerial officers, pp. 215, 219. 
acts of sheriffs, pp. 216, 219. 
public officers, p. 222. 

legislative officers, p. 222. 
executive officers, p. 223. 
general rule of liability, p. 224. 
recorders, p. 224. 
postmasters, p. 227. 
supervisors of highways, 228. 
boards of education, p. 210. 
naval and military officers, p. 229. 
Injuries to reputation— slander and libel— malicious prosecution— pp. 64-88. 
defamation, p. 64. 
slander, p. 65. 

words held not actionable, p. 66. 
actionable words qualified by other words, p. 70. 
charge of false swearing, p. 71. 
slander and libel, publication, p. 72. 
* insufficient l>ublication, p. 73. 

words affecting trade, business, or occupation, p. 73. 
the truth of the charge as a justification, p. 76. 
privileged communications, utterances, and publications, p. 77. 
extent of the privilege, p. 78. 
reports of trials, p. 80. 
privileged petitions, p. 81. 

communications in reference to proposed marriages, p. 82. 
privilege of counsel in argument, p. 82. 
under control of the court, p. 87. 
responsibility of counsel in argument, p. 87. 
publication of argument, p. 88. 
malicious prosecution, pp. 88-91. 
malicious prosecution of civil actions, p. 90. 
defendant's proof, p. 91. 
Injuries to water-rigbts— subterranean and surface-waters, artificial water- 
courses, pp. 148-206. 
diversion of subterranean streams, hidden springs, and percolating waters 

—injuries from mining operations to adjoining lands, p. 14& 
subterranean waters, percolations diverted by well-digging, p. 154. 

INDEX. 325 

InJiufieB to w^ater-rights— Continued. 

injuries to wells, sprinfcs, etc., by mining operations in adjoining soil, p. 174. 

rights of owners of land in subterranean streams and percolations^water 
belonging to the soil, p. 182. 

reasonable use of surface streams, p. 193. 

pollution by sewage, etc., city's liability, p. 197. 

injuries to artillcial water^iourses, p. 198. 

artificial watez^ourses— two classes — distinctions, p. 203. 

increasing the flow, p. 206. 
Innocent parties — ^negligence of in actions of deceit, etc., p. 285. 
In pari delicto potior est conditio defendentia— p. 238. 
Interference ^with trade—pp. 16, 91. 
Intervening negligence— p. 272. 


Judicial officers— liability of, p. 207. 

responsibility of for striking attorney's name from the rolls, p. 211. 
Jurors— Injuries from acts of, p. 209. 
Jostification- in slander suits by showing the truth of the charge, p. 70. 

justifiable detentions, p. 56. 

Lands adjoining mines— prior possession, p. 146. 

support, surface, pp. 122, 129. * 

support from adjacent soil, pp. 190, 136. 
Lateral support— to lands, pp. 130-143. 
Landlord's right— to enter his premises, p. 119. 
La'wfnl acts— damages from, p. 11. 
Lawful arrests— p. 54. 
Letters — ^uncalled for, publication of, p. 24. 
Legislature— nuisances authorized by, p. 62. 

injuries from acts of members of, p. 222. 
Level— upper and lower, mines, p. 143. 
Liability of city— for pollution of water by sewage, p. 197. 
Libel— pp. 64-88. 

See Slander and Libel. 
Liberty of person— injuries to, pp. 61-56. 

false imprisonment, 61. 

what does not constitute imprisonment, p. 51. 

lawful arrests, p. 54. 

justifiable detentions, p. 65. 

imprisonment by commanders of vessels, p. 56. 
Idoense— fixtures attached without, p. 98. 
Licensees— injuries to, p. 38. 
Lights— obstruction of, p. 60. 
Limited interference— with chattels, p. 94. 
Locator— right of oldest, p. 147. 
Low^er level- mines, p. 143. 
Lnnatios— injuries by, p. 29. 

326 INDEX. 


Malice— to be shown in actions for malicious prosecution, p. 80. 
MalicioTiB proseoution— pp. 88-91. 

termination of the prosecution, p. 89. 

acquittal necessary, p. 89. 

want of reasonable and probable cause, p. 89. 

malice must be shown, p. 89. 

professional advice as a defense, p. 89. 

malicious prosecution of civil actions, p. 90. 

defendant's proof, p. 91. 
MarriagOB — proposed, communications as to, p. 82. 
Masters of ships— injuries by, pp. 41, 60, 229. 
Master and servant — contributory negligence on part of servants, p. 248. 

negligence of master, p. 250. 

injuries to servants, p. 250. 

exemption of master, pp. 260, 251. 

injuries from fellow-servants, p. 266. 

negligence of servants, p. 265« 
Medical men— negligence of, p. 275. 
Memorials— privileged, p. 81. 
Mental distress— when no remedy for, p. 59. 
Military o£Bcers— injuries from acts of, p. 229. 
Mining operations— injuries resulting from, pp. 122-147. 

right of surface support, p. 122. 

common-law presumptions, p. 122. 

express grant of right to surface support, p. 129. 

support from adjacent soil, p. 130. 

lateral support to ditch property, p. 136. 

flooding, p. 136. 

upper and lower level, p. 143. 

mining operations regarded as nuisances, p. 144. 

fraudulent working, p. 145. 

prior possession of lands adjoining mines, p. 146. 

right of oldest locator, p. 147. 
Ministerial o£Bcers— injuries from acts of, pp. 54, 55, 215, 216, 219, 224. 
Bftisrepresentation, deceit, and fraud- injuries through, pp. 277-28(>. 

what must be shown or action fail, p. 277. 

the representation, p. 278. 

knowledge of falsity, p. 280. 

ignorance and belief of plaintiff, p. 281. 

equal means of knowledge, p. 282. 

intention that representation should be acted upon, p. 282. 

acting upon the representation, p. 283. 

waiver of fraud, p. 284. 

expressions of opinion and belief, p. 285. 

negligence of innocent parties, p. 285. 
Mitiore sensu— words used in, pp. 66, 71. 
Moderate correction— by parents, p. 38. 
Molliter manus imposuit— p. 36. 

Municipal corporations— non-exercise of power by, p. 20. 
Mutual negligence— p. 273. 

INDRX. 827 


NamoB — assumption of family names, p. 19. 
Naval offioen^-injuries from acts of, pp. 41, ({:5, 220. 
Necessity—entering lands from, pp. 13, 18. 

injuries committed through, p. 17. 

injuries to personal property arising from, p. i>2. 
Negleot of wife— by husband, p. 50. 
Negligenoe, contributory— pp. 14, 238, 240, 24^272. 
Negligence— injuries from, pp. 230, 276. 

injuries from negligence, p. 230. 

remote and proximate damages, p. 233. 

remote consequences, p. 234. 

remote consequences — injuries from fire, p. 2:US. 

injuries caused by railway locomotives, p. 238. 

contributory negligence, p. 238. 

plaintiff's duty to prevent injury, p. 245. 

contributory negligence on part of servants, p. 248. 

contributory negligence — ^injuries to children, p. 249. 

negligence of master— injuries to servants, p. 2!iO. 

injuries to servant— exemption of master, p. 251. 

injuries to servants from their fellow-servants, p. 25(>. 

negligence of servants, p. 265. 

negligent management of chattels — inevitable accident, p. 2G9. 

successive negligence of two or more, p. 270. 

contemporaneous negligence, p. 272. 

intervening negligence, p. 272. 

mutual negligence, p. 273. 

negligence of medical men, p. 275. 
Non-compotes— injuries by, p. 29. 

Non-exercise Cf powers- by municipal corporations, p. 23. 
Nuisances— pp. 57-<>3. 

personal discomfort, p. 57. 

mental distress, p. 59. 

obstruc)iion of lights, p. 60. 

nuisances authorized by act of legislature, p. 62. 

exercise of statutory powers, p. 62. 

trustees and commissioners of public works, p. 63. 

mining operations regarded as, p. 144. 
Nullus commodum oapere potest de injuria sua propria— p. 238. 


Obstruction— of lights, p. 60. 

Occupation— words affecting, p. 73. 

Officers, public— injuries from acts of, pp. 207-229. 

p'udicial officers, pp. 207, 211. 

ministerial officers, pp. 215, 219. 

828 INDEX. 

Offloers, pxLbUo—CorUinued. 

sheriffs, pp. 216, 219. 

legifllatiye offlcen, pp. 222. 

executive officers, p. 223. 

general rule of liability, p. 224. 

recorders, p. 221. 

postmasters, p. 227. 

supervisors of highways, p. 228. 
' hoards of education, p. 210. 

naval and military officers, p. 229. 
^ arrests by officers, pp. 54, 55. 

Opinion and belief— expressions of, actions of deceit, etc., p. 285. 
Ownen of stocks and shares— injuries to, pp. 99, 111. 
See Stocks and Shabbs. 

Parents— correction by, p. 38. 

Patents— infringement of, p. 25. 

Peroolating craters— injuries to, diversion of, pp. 148, 154, 174, 182. 

Personal property— injuries to, pp. 92-96. 

injuries to arising from necessity, p. 92. 

conversion of goods, etc., p. 93. 

limited interference with chattels, p. 94. 

chattels found, p. 96. 

chattels received as security, p. 96. 

injuries to animals, p. 96. 

hitching horses, p. 96. 
Personal injuries— injuries to relative rights, pp. 28-M. 

personal injuries, p. 29. 

injuries by infants and non-compotes, p. 29. 

injuries resulting in death, p. 32. 

assault, p. 34. 

assaults in self-defense, etc., p. 37. 

defense of relatives, friends, etc., p. 38. 

moderate correction by parents, etc., p. 38. 

injuries to licensees, p. 38. 

injuries to workmen, p. 39. 

injuries to trespassers, p. 40. 

injuries inflicted by masters of ships upon their crews, p. 41. 

injuries from animals, p. 43. 

seduction, p. 43. 

criminal conversation, pp. 43, 49. 

connivance of the plaintiff, p. 49. 

infidelity of the husband, neglect of wife, p. 50. 
Petition^- privileged, p. 81. 
Pbysioians— negligence of, p. 275. 
Pledgee— conversion of stock by, p. 111. 
Pollution of water— p. 145. 

by sewage, p. 197. 
Pow^er— non-exercise of, by corporations, p. 23. 
Possessio olandestina— p. 131. 
Possession— prior, of lands adjoining mines, p. 146. 

INDBX. 829 

PostnuuiterB— injuries from acts of, p. 227. 

Prior posB6«don— of lands adjoining mines, p. 146. 

PriYllefped oommanicatioiis— utterances and publications, pp. 77-88. 

extent of tlie priyilege, p. 78. 

reports of trials, p. 80. 

privileged petitions, p. 81. 

communications in reference to proposed marriages, p. 82. 

privilege of counsel in argument, p. 82. » 

under control of the court, p. 87. 

responsibility of counsel in argument, p. 87. 

publication of argument, p. 88. i 

Probable oause— want of, malicious prosecution, p. 89. 

See Malicious PBosBCunoK. 
Professional advlce-^as a defense to actions, p. 89. 
Proof of defendant— in actions for malicious prosecution, p. 91. 
Property, personal— injuries to, pp. 92-96. 

injuries to property, p. 92. 

injuries to personal property arising from necessity, p. 92. 

conversion of goods, etc., p. 93. 

limited interference with chattels, p. 94. 

chattels found, p. 96. 

chattels received as security, p. 96. 

injuries to animals, p. 96. 

hitching horses, p. 98. 
Property, real—injuries to, pp. 117-121. 

trespasses on, p. 117. 

landlord's right to enter, p. 119. 

justifiable entries, p. 120. 

s^f-liberation, p. 120. 

use of one's own, p. 13. 
Proseontion— malicious, pp. 88-91. 
Prospeotns— deception in. p. 283. 

See Maijcio(78 Fbobbcution. 
Proximate and remote damages— pp. 233, 234, 236. 
Pnblio w^orks— nuisances by oommiBsioneni of, p. 63. 
Pnblio offioers— injuries from acts of, pp. 207-229. 

judicial officers, pp. 207, 211. 

ministerial officers, pp. 216, 219. 

sheriffs, pp. 216, 219. 

legislative officers, p. 222. 

executive officers, p. 223. 

general rule of liability, p. 224. 

recorders, p. 224. 

postmasters, p. 227. 

supervisors of highways, p. 228. 

boards of education, p. 210. 

naval and military officers, p. 229. 
Public policy- rules of, p. 17. 
Pnblioatlon— of uncalled-for letters, p. 24 
Publication- slander and libel, p. 73. 

insufficient, p. 73. 

of argument of counsel, p. 88. 

See Pbivileobd Ck>iocuincATioi^s. 

880 iia>BX. 


Railway looomotlTes— injuries caused by, p. 238. 
Real p]:operty— injuries to, pp. 117-121. 

trespasses on, p. 117. 

landlord's right to enter, p. 119. 

justifiable entries, p. 120. 

self-liberation, p. 120. 
Reasonable oatise — want of, malicious prosecution, p. 89. 
Recorders—injuries from* acts of, p. 224. 
Remedy for wrongs— p. 10. 
Remote and proximate damages— p. 233. 
Remote consequences— pp. 231, 235. 
Reputation— injuries to, pp. 64-^. 

See SLAinoEB and Libel, Malicious Pbobbcutiom. 
Representation— the, in actions for deceit, etc., pp. 278, 282, 283. 
Respondeat superior— rule of, pp. 40, 268. 
Responsibility of counsel— In argument, p. 87. 
Right to damages— p. 10. 
Riparian rights— p. 193. 
Rules of public policy— p. 17. 


Balus popnli snprema lex— pp. 13, 17. 

Scienter— proving the, In actions of deceit, etc., p. 280. * 

Security— chattels received as, p. 76. 

Sednction— p. 43. 

Self-defense— injuries and assaults in, pp. 17, 37. 

Self -liberation— when justifiable, p. 120. 

Self-preservation— injuries to others, pp. 17. 37. 

Servants— contributory negligence on part of, p. 248. 

negligence of master, p. 260. 

injuries to, p. 260. 

injuries from fellow-servants, negligence of, p. 265. 
Sewage— pollution of water by, p. 197. 
Shares — ^injuries to holders and owners of, pp. 99, 111. 

See Stocks and Shabbs. 
Sherilb— injuries from acts of, pp. 64, 66, 216, 219. 
Sic utere tuo ut alienom non Icsdas— pp. 14, 122, 124, 127, 142, 143, 149, 

163, 168, 161. 
Slander and libel— pp. 64, 88. 

slander, p. 66. 

words held not actionable, p. 66. 

actipnable words qualified by other words, p. 70. 

charge of false swearing, p. 71. 

publication, p. 72. 

insufficient publication, p. 73. 

words affecting trade, business, or occupation, p. 73. 

the truth of the charge as a justification, p. 76. 

INDEX. 881 

Blander and Wbel— Continued. * 

privileged communications, utterances, and publications, p. 77. 

extent of the privilege, p. 78. 

reports of trials, p. 80. 

privileged petitions, p. 81. 

communications in reference to proposed marriages, p. 82. 

privilege of counsel in argument, p. 82. 

under control of the court, p. 87. 

responsibility of counsel in argument, p. 87. 

publication of argument, p. 88. 
Blandor of title— p. 283. 
Smelting works as a nuisance, p. 145. 
Springs — ^hidden and subterranean, diversion of, pp. 148, 154. 

injuries to, pp. 148, 154, 174. 
Stooka and shares — in incorporated companies, injuries to holders and own- 
ers of, p. 99. 

conversion of stock, etc., p. 99. 

injuries suffered by purchasers of stock, p. 99. 

technical breaches of trust, p. 99. 

injuries suffered by equitable owners of stock — conversion by pledgee, 
p. 111. 

sale of mining stock— fraudulent representation, p. 115. 

stock stolen, p. 116 
Stolen stook— pp. 101, 116. 
Streams— subterraneap, diversion of, pp. 148, 154, 174, 182. 

surface, reasonable use of, pp. 193, 197. 

pollution of, p. 197. 
Streets — changing grade of, p. 11. 

opening through lands, p. 24. 
.Snbjaoent support— p. 122. 
Substanoes— dangerous, escape of, p. 26. 
Subterranean waters— diversion of, pp. 148, 154, 174, 182. 
Buooessive negligence— of two or more, p. 270. 
Supervisors of highways— injuries from acts of, p. 228. 
Support, surf ace— right of, p. 122. 
Support— from adjacent soil, pp. 130, 136. 
Surface drainage— pp. 137-140, 201. 
Suxface support— p. 122. 

common-law presumptions, p. 122. 

express grant of right of, p. 122. 
Surface streams— injuries to, pp. 193, 197. 

reasonable use of, p. 193. 

pollution by sewage, p. 197. 


Technical breaches— of trust, p. 99. 
Termination— of malicious prosecution, p. 89. 
Torts— defined, p. 2. 

classiAed, p. 4. 
Trade— interference, p. 16. 

words affecting, p. 73. 
Trade-marks— violation of, p. 284. 

832 INDEX. 

Trespassexv— injuries to, p. 40. 

on real property, p. 117. 
TrlalB— reports of, whether priylleged, p. 90. 
Trifling Injnrlefl— p. 15. 
TruBt— technical breaches of, p. 99. 

Trustees of public works— nuisances committed by, p. 63. 
Truth of the charge— as a justification in slander suits, p. 76. 


Ubi jus, ibi remedlum— p. 2. 

Unoalled-for letters— publication of, p. 24. 

Upper and lower level— p. 143. 

Use of one's own property— p. 13. 

Use of surface streams— reasonable, pp. 193, 197. 

Usufruct— in water, p. 193. 

Utterances— privileged, pp. 77-88. 

See Fbiyiueobd GoAOfUNiCATioirs. 


Vessels — commanders of, imprisonment by, p. 66. 
Vis major— injuries by, pp. 17, 26. 
Void vrrits— arrests under, pp. 04, 55. 
Volenti non fit injuria— pp. 22, 27. 


Waiver of fraud— actions of deceit, fraud, etc., p. 284. 
Want of reasonable and probable cause— p. 89. 

malicious prosecution, p. 91. 
Waters— subterranean, diversion of, pp. 148, 164. 

percolating, diversion of, pp. 148, 164. 

pollution of, p. 146. 
Water rights— injuries to, pp. 148-206. 

diversion of subterranean streams, pp. 148, 164, 174, 182. 

diversion of percolating waters, pp. 148, 164, 174, 182. 

diversion of hidden springs, pp. 148, 164. 174, 182. 

diversion by well-digging, pp. 164, 174. 

diversion by mining operations, pp. 148, 174. 

reasonable use of surface streams, p. 193. 

pollution by sewage, p. 197. 

city's liabiUty, p. 197. 

injuries to artificial water-courses, p. 198. 

artificial water-courses, two classes, p. 203. 

distinctions, p. 203. 

increasing the flow, p. 206. 

INDEX. 888 

'XKTell-digs^—^J^'i^ to adjoining lands, pp. IM, 174. 
'\IV'ife— neglect of by husband, p. 00. 
"^iVorkins— fraudulent mines, p. 145. 
Workmen— Injuries to, p. 99. 
'^7'orda— held not actionable, p. 65. 

qualified by other words, p. 70. 

affecting trade, business, or occupation, p. 73. 
"WxitB— arrest under, pp. 54, 55. 
I— remedy for, p. 10.